Research Paper-I

Research Paper on

LEGAL STRUCTURES AND

NATIONAL & INTERNATIONAL

FRAMEWORK FOR

SUSTAINABLE DEVELOPMENT

Authors Name : Ayush Gehlot

INTRODUCTION: The concept of 'Sustainable Development' is not a new concept. The doctrine had come to be

known as early as in 1972 in the Stockholm declaration. It had been stated in the declaration

that: " 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

generation " But the concept was given a definite shape in a report by world commission on environment,

which was known as ' our common future'. The commission, which was chaired by the then

Norway Prime Minister, Ms. G.H. Brundtland defined 'Sustainable Development' as: "

Development that meets the needs of the present without compromising the ability of the

future generations to meet their own needs".The report was popularly known as 'Brundtland

report' the concept had been further discussed under agenda 21 of UN conference on

environment and development held in June 1992 at Rio de Janeiro, Brazil.

Sustainable development is development which meets the needs of the present without compromising the ability of future generations to meet their own needs. It is aimed at

promoting wellbeing of citizens now and in the future. It requires creating a sustainable and

resource efficient economy founded on a fair and just society, respecting the three core pillars

of sustainability: the environmental, the economic, and the social.

The original concept of sustainable development was elaborated upon through a series of

groundbreaking documents and legal instruments agreed at the 1992 Earth Summit held in

Brazil (also known as the United Nations Conference on the Environment and Development

or UNCED), which was a major success in raising public awareness on the need to integrate

environment and development. In the preparatory process for the Rio Summit in 1992, there

were a number of proposals for institutional reform to address the challenges of sustainable

development. Also, UNCED saw the adoption of a number of crucial agreements and those

agreements were signed at the Earth Summit, which are as follows:

The Rio Declaration on Environment and Development;

Agenda 21;

The Convention on Biological Diversity (CBD);

The United Nations Framework Convention on Climate Change (UNFCCC); and

LEAGL STRUCTURES & INTERNATIONAL

FRAMEWORK

A. International Treaties and Principles of Sustainable Development: There are a number of examples of international treaties that include principles of sustainable development. These include:

World Heritage Convention (1972) which refers to natural and cultural heritage

being preserved for the benefit of mankind.

Ramsar Convention (1973) directed at the wise use of wetlands.

Vienna Convention for the Protection of the Ozone Layer (1985) and Montreal

Protocol on Substances that Deplete the Ozone Layer (1987) (Montreal Protocol)

which requires precautionary measures to be adopted to prevent ozone depleting

substances damaging the ozone layer.

United Nations Framework Convention on Climate Change (1992) (UNFCCC) and

its Kyoto Protocol (1997) has as two of its key principles, the precautionary

principle and the principle of intergenerational equity.

Convention on Biological Diversity (1992) as noted above, the basis of this

convention is to conserve biodiversity. In addition, the Convention is guided by the

precautionary principle and the principle of intergenerational equity.

Convention on the Non-Navigational Use of Watercourses (1991) which has as

its objective the sustainable use of water resources and seeks to give effect to

principles which include the precautionary principle and also the principles of inter-

and intra-generational equity.

As a general observation, international treaties reflect agreements amongst States to adhere to

minimum standards and values when seeking to protect the environment. However, most

treaties, with the exception of the UNFCCC / Kyoto Protocol and Montreal Protocol do not

place enforceable obligations on those States that are Parties to them. However, States are

required to act consistently with their obligations and to give effect to those obligations in

their domestic laws. In this regard, the introductions of national laws that give effect to treaty

obligation are critical to translating those international principles into action on the ground.

B. THE MDGs AND THE ROLE OF SUSTAINABLE DEVELOPMENT: The Millennium Declaration was adopted by 189 States in September 2000 at the UN

Millennium Summit. The Declaration outlines peace, security, and development concerns in

areas including the environment, human rights, and governance. The Declaration led to the

consolidation of a set of interconnected and mutually reinforcing development goals, targets,

and benchmarks into a global agenda known as the Millennium Development Goals (MDG). The MDGs set out time-bound goals to achieve quantifiable results to:

Eradicate extreme poverty and hunger;

Achieve universal primary education;

Promote gender equality and empower women;

Reduce child mortality;

Improve maternal health;

Combat HIV/AIDS, malaria and other diseases;

Ensure environmental sustainability; and

Develop a global partnership for development. Each of the eight goals has targets and indicators used to measure progress. Due to its

overarching nature, the concept of sustainable development underpins each of the MDGs.

In UN General Assembly Resolution, which adopted the outcomes of the 2002 World

Summit on Sustainable Development (WSSD), the General Assembly agreed to adopt

sustainable development as a key element of the overarching framework for United Nations

activities, in particular for achieving the internationally agreed development goals, including

those contained in the United Nations Millennium Declaration, and to give overall political

direction to the implementation of Agenda 21 and its review.

This Resolution demonstrates that the General Assembly considered the application of

sustainable development principles to be a crucial consideration to be taken into account in

the UNs work, and as an essential prerequisite for achieving the MDGs. It is, furthermore,

intuitive that for development to be effective, it must have a long term vision addressing

economic, social and environmental considerations. In other words, all development should

fall under the rubric of sustainable development.

B.1 Linking Environment, Economic Development, and Human Well-Being By building better links between environmental principles and human and economic

wellbeing, environmental principles can be strengthened and better integrated into

development policies, thereby leading to better long-term economic, social, and

environmental outcomes from decision- and policy-making. The World Summit provided an opportunity for world leaders to endorse quantifiable

indicators under Millennium Development Goals and establish stronger linkages in economic

and social development policy with the targets already set out in multilateral environmental

agreements. In this regard, it also included targets and benchmarks, under the Convention on Biological Diversity process to achieve a significant reduction of the current rate of

biodiversity loss at the global, regional and national level as a contribution to poverty

alleviation and to the benefit of all life on earth; and the Kyoto Protocols 2012 targets to

reduce greenhouse gas emissions in developed countries.

C. Rio+20 Summit: The United Nations Conference on Sustainable Development - or Rio+20 - took place in Rio

de Janeiro, Brazil on 20-22 June 2012. It resulted in a focused political outcome document

which contains clear and practical measures for implementing sustainable development.

In Rio, Member States decided to launch a process to develop a set of Sustainable

Development Goals (SDGs), which will build upon the Millennium Development

Goals and converge with the post 2015 development agenda.

Governments also decided to establish an intergovernmental process under the

General Assembly to prepare options on a strategy for sustainable development

financing.

They also agreed to establish a high-level political forum for sustainable

development. The Rio +20 Conference also galvanized the attention of thousands

of representatives of the UN system and major groups. It resulted in over

700 voluntary commitments and witnessed the formation of new partnerships to

advance sustainable development.

Also, The Rio +20 affirmed the essential role of the rule of law in development. In the

Outcome Document, which was adopted by the UN General Assembly in September 2012,

participating states acknowledge that democracy, good governance and the rule of law, at

the national and international levels, as well as an enabling environment, are essential for

sustainable development, including sustained and inclusive economic growth, social

development, environmental protection and the eradication of poverty and hunger. The

participants also acknowledged the need for strong and effective legal and regulatory

frameworks, especially to ensure sustainable development through extractive industries, and

to expand development to the poor and vulnerable.

The two themes of the Conference were: (1) a green economy in the context of sustainable

development and poverty eradication; and (2) the institutional framework for sustainable

development (IFSD).

C.1. GREEN ECONOMY in the context of Sustainable Development and Poverty

Eradication: It was one of the principal themes of the UNCSD, based on the UNGA decision that

established the Conference. This section affirms that there are different approaches, visions,

models and tools available to each country to achieve sustainable development, and the green

economy is considered one of the important tools, guided by the Rio Principles, Agenda 21

and contributing to the MDGs. A paragraph on green economy policies addresses, inter alia:

National sovereignty over natural resources;

Participation by all relevant stakeholders;

Sustained and inclusive growth;

International cooperation on finance, among other matters;

Trade discrimination;

Technology gaps;

Indigenous peoples and non-market approaches;

Poverty eradication;

Social protection floors;

Overcoming poverty and inequality.

On implementation of policies, there is recognition that each country can choose an

appropriate approach, resource efficiency, equitable growth and job creation, and of the

importance of evaluating a range of social, environmental and economic factors in decision

making. On partnerships and networks, the document notes positive experiences in some

countries, including in developing countries, of adopting green economy policies.

There is recognition of the power of communication technologies, of linking finance,

technology and capacity building, and in emphasis on the importance of governments in

showing leadership. Relevant stakeholders, including the UN regional economic

commissions and other UN bodies, international organizations, intergovernmental

organizations and Major Groups are invited to support developing countries efforts, and

business and industry are invited to develop sustainability strategies that integrate green

economy policies.

C.2. The Institutional framework for sustainable development (IFSD):

1. Strengthening the Three Dimensions of Sustainable Development: it discusses about

civil society engagement, with differences persisting over the venues for stakeholder

involvement and placement of the related text, and on concerns over monitoring roles. Also,

it agrees to strengthen IFSD, including by promoting the full and effective participation of

all countries in decision making processes; promote the review and stocktaking of progress

in implementation of all sustainable development commitments, and enhance the

participation and effective engagement of civil society. It calls for capacity building

especially for developing countries, including in conducting their own monitoring and

assessments.

2. Strengthening Intergovernmental Arrangements for Sustainable Development: This

subsection includes the UN General Assembly, UN Economic and Social Council

(ECOSOC), and the high-level political forum. Further it calls UNGA to integrate sustainable

development in its work, including through high-level dialogues. It commits to strengthening

ECOSOC, and looks forward to the Review of the Implementation of General Assembly

Resolution on the strengthening of ECOSOC.

3. Environmental Pillar in the Context of Sustainable Development: this section invites

the UNGA, to adopt a resolution strengthening and upgrading UN Environment Programme

by:

establishing universal membership in its Governing Council;

strengthening its engagement in key UN coordination bodies;

providing capacity building as well as facilitating access to technology;

progressively consolidating headquarters functions in Nairobi as well as strengthening

its regional presence; and

Ensuring the active participation of all relevant stakeholders, drawing on best

practices and models from relevant multilateral institutions.

It also encourages parties to multilateral environment agreements (MEAs) to consider further

measures for enhancing coordination and cooperation.

4. Regional, National, Sub-National, and Local: this section recognizes the importance of

integrated social, economic, and environmental data and information, as well as effective

analysis and assessment of implementation to decision-making processes; and encourages

action at the various levels to promote access to information, public participation, and access

to justice in environmental matters. It calls on countries to strengthen national, sub-national

and/or local institutions or relevant multi-stakeholder bodies and process, as appropriate.

D. The Rio Declaration on Environment and Development: The Rio Declaration states that the only way to have long term economic progress is to link it

with environmental protection. This will only happen if nations establish a new and equitable

global partnership involving governments, their people and key sectors of societies. They

must build international agreements that protect the integrity of the global environmental and

the developmental system. Although not legally binding, the Rio Declaration enunciated the

key principles of sustainability including, but not limited to: 1. The principle of integration: The principle of integration underpins all of the principles

of sustainable development. It requires that both development and environment

considerations are taken into account in the decision making process. This requires both

ensuring that environmental considerations are integrated into development objectives

and that development needs are taken into account in applying environmental objectives. 2. The precautionary principle: Principle 15 of the Rio Declaration states "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".

3. The principle of intergenerational equity: The Rio Declaration recognized a number of

principles of equity. However, foremost of these are the principles of inter- and intra-

generational equity. Inter-generational equity is defined as meaning that the present

generation should ensure that the health, diversity and productivity of the environment are

maintained or enhanced for the benefit of future generations. Intra-generational equity

involves consideration of equity within the present generation, such as use of natural

resources by one nation state meaning to take account of the needs of other nation states.

In other words, people within the present generation have equal rights to benefit from the

exploitation of resources and from the enjoyment of a clean and healthy environment.

4. The polluter pays principle: It says, those who generate pollution and waste should bear

the cost of containment, avoidance or abatement;

E. The role of NGOs in sustainable development: Sustainable development requires public participation and effective access to the courts.

Without an engaged public and an independent judiciary, laws on the books may not be

implemented or enforced. The articles in this special issue provide evidence of the

importance of nongovernmental organizations. Non-governmental organizations (NGOs)

have played a major role in pushing for sustainable development at the international level.

Campaigning groups have been key drivers of inter-governmental negotiations, ranging from

the regulation of hazardous wastes to a global ban on land mines and the elimination of

slavery.

However, one characteristic these diverse organizations share is that their non-profit

status means they are not hindered by short-term financial objectives. Accordingly, they

are able to devote themselves to issues which occur across longer time horizons i.e. long

term objectives, such as climate change, malaria prevention or a global ban on landmines.

Public surveys reveal that NGOs often enjoy a high degree of public trust, which can

make them a useful - but not always sufficient - proxy for the concerns of society and

stakeholders and other interest groups. The trouble with sustainable development of this sort is that, although its easy to picture,

it is hard to bring about. We may have a good idea of what wont work, but were less

certain of what will. Addressing poverty as an economic problem involves work such as

loaning money to people to start small businesses, or seeking to improve human capital

through helping children attend school. The rationale is that small improvements can be

compounding and ultimately self-sustaining: businesses expand; profits are reinvested;

educated children get better jobs. It is the sort of reasoning that NGOs can play as roles

in order to improve micro-economic condition from the very root of itself.

NGOs as a external agents are trying to bring change, they are inevitably going to be

imperfectly informed about this context. There are limits to what they can do and they are

often hampered by powerful local actors and state policies. Under these circumstances, it

is possible that the optimal approach in a hypothetical world of omnipotent NGOs wont

be the best approach in the real world where NGOs are constrained by others factors.

They also play a vital role in the shaping and implementation of participatory democracy.

Their credibility lies in the responsible and constructive role they play in society. Formal

and informal organizations, as well as grass-roots movements, should be recognized as

partners in the implementation of Agenda 21. The nature of the independent role played

by non-governmental organizations within a society calls for real participation; therefore,

independence is a major attribute of non-governmental organizations and is the

precondition of real participation.

LEAGL STRUCTURES & NATIONAL FRAMEWORK

for SUSTAINABLE DEVELOPMENT

A. Role of judiciary in Sustainable Development

Right to wholesome environment is a fundamental right protected under Article 21 of the

Constitution of India. But the question is, can the environment be protected at present

times when almost all the countries in South-East Asia are still at their developing stages?

Development comes through industrialization, which in turn the main factor behind the

degradation of environment. To resolve the issue, the experts worldwide have come up

with a doctrine called 'Sustainable Development', i.e. there must be balance between

development and ecology.

The judiciary plays a critical role in the enhancement and interpretation of environmental

law and the vindication of the public interest in a healthy and secure environment.

Judiciaries have, and will most certainly continue to play a pivotal role both in the

development and implementation of legislative and institutional regimes for sustainable

development.

The judiciary is also a crucial partner in promoting environmental governance, upholding the

rule of law and in ensuring a fair balance between Environmental, social and developmental

consideration through its judgments and declarations. The role of the legal system to ensure

environmental justice is only effective if it is universally accessible. The ability to develop

democracy and civil political participation exists where the system of access is fair, and does

not directly or indirectly exclude specific individuals, groups or organizations. Thus, there

should be a better law for sustainable development, to save our common future.

B. Environmental Justice in India Environmental rights in India do not really exist in written form. They were rather created

from lawyers and activists from other available resources. At first, the general provisions

should be introduced before examining how the Indian Courts have decided on

environmental related grievances. The analysis will be limited on constitutional rights

Judiciary in India, more precisely, the Supreme Court and the High Courts has played an

important role in preserving the doctrine of ' Sustainable Development '. Parliament has

enacted various laws to deal with the problems of environmental degradation. In such a

situation, the superior courts have played a pivotal role in interpreting those laws to suit the

doctrine of ' Sustainable Development'.

It is worthwhile to mention here that principle 10 of Rio declaration, 1992 states that: "Environmental issues are best handled with participation of all concerned citizens, at the

relevant level. At the national level, each individual shall have appropriate access to

information concerning the environment that is held by public authorities, including

information on hazardous materials and activities. States shall facilitate and encourage

public awareness and participation by making information widely available. Effective access

to judicial and administrative proceedings, including redress and remedy, shall be provided."

1) Vellore Citizen Welfare Forum vs. Union of India was the first case on which the apex

court had applied the doctrine of ' Sustainable Development' in which the dispute arose over

some tanneries in the state of Tamil Nadu. These tanneries were discharging effluents in the

river Palar, which was the main source of drinking water in the state .The Hon'ble Supreme

Court held that: "We have no hesitation in holding that the precautionary principle and

polluter pays principle are part of the environmental law of India". The court also held that:

"Remediation of the damaged environment is part of the process of 'Sustainable

Development' and as such polluter is liable to pay the cost to the individual sufferers as well

as the cost of reversing the damaged ecology."

But before Vellore Citizen's case, the Supreme Court has in many cases tried to keep the

balance between ecology and development. In Rural Litigation and Entitlement Kendra

Dehradun vs. State of Uttar Pradesh1, which was also known as Doon valley case, dispute

arose over mining in the hilly areas. The Supreme Court after much investigation, ordered the

stopping of mining work and held that: "This would undoubtedly cause hardship to them, but

it is a price that has to be paid for protecting and safeguarding the right of the people to live

in healthy environment with minimal disturbance of ecological balance and without

avoidable hazard to them and to their cattle, homes and agricultural land and undue

affection of air, water and environment."

1 1989 AIR 594, 1989 SCC Supl. (1) 537

However in 1991, in the Rural Litigation and Entitlement Kendra vs. State of U.P.2 the

Supreme Court firstly allowed a mine to operate until the expiry of lease as exceptional case

on condition that land taken on lease would be subjected to a forestation by the developer.

But as soon as the notice was brought before the court that they have breached the condition

and mining was done in most unscientific way, the Supreme Court directed the lessee to pay

a compensation of three lacs to the fund of the monitoring committee. This has been directed

on the principle of 'polluter pays'.

Likewise, various forests have also been protected. In a landmark case Tarun Bhagat Singh

vs. Union of India3, the petitioner through a PIL brought to the notice of the Supreme Court

that the state government of Rajasthan though empowered to make rules to protect

environment, failed to do so and in contrary allowed mining work to continue within the

forest area. Consequently, the Supreme Court issued directions that no mining work or

operation could be continued within the protected area.

But it would be unwise to hold that the courts always favour environment without giving any

significance to the development aspect when dispute arises between environment and

development.

In M. C. Mehta vs. Union of India, the Supreme Court issued directions towards the closing

of mechanical stone crushing activities in and around Delhi, which was declared by WHO as

the third most polluted city in the world. However it realized the importance of stone

crushing and issued directions for allotment of sites in the new 'crushing zone' set up at

village Pali in the state of Haryana.

Recommendations regarding Environmental Justice system:

In view of the involvement of complex scientific and specialized issues relating to

environment, there is a need to have separate Environment Courts manned only by

the persons having judicial or legal experience and assisted by persons having

scientific qualification and experience in the field of environment.

In order to achieve the objectives of accessible, quick and speedy justice, these

Environment Courts' should be established and constituted by the Union

Government in each State. 2 1985 AIR 652, 1985 SCR (3) 169 3 1993 SCR (3) 21, 1993 SCC Supl. (3) 115

The proposed Environment Court should consist of a Chairperson and at least two

other members.

The proposed Environment Court shall also have appellate jurisdiction.

Global law is necessary to solve the environmental cases and 12 law of principle is

helpful for the better judiciary process.

Thus it is quite obvious that the courts give equal importance to both ecology and

development while dealing with the cases of environmental degradation. Environment and

development are two sides of the same coin. Any one of these cannot be sacrificed for the

other. On contrary, both are equally important for our better future. Thus the responsibility

lies on the Supreme Court and the various High Courts to deal with these cases with caution

of high degree. Then only, we will achieve our goal i.e. to secure a pollution free developed

country for our next generation.

C. Role of Advocates and Courts in sustainable development: The legal system plays a key role in governing sustainable business, Like Getting advice

from lawyers who understand sustainability issues will be the key to unlocking the

opportunity for sustainable development. Corporate and commercial law touches business

across the triple bottom line, from employment and corporate governance issues, to energy

and waste management, to tax and financing models, and has a fundamental influence on the

development of key sustainability themes such as collaboration in the supply chain or on

intellectual property. Lawyers that do not put sustainability in a box marked 'someone else's

problem', but understand how it connects with the bigger picture, have a genuine opportunity

to help unlock sustainable business opportunities for organizations with an ambition to lead

change and the appetite to see what is possible.

Traditionally, law as a profession has been regarded by many as reactive, that is, lawyers

follow their clients in the decision-making process. Yet lawyers help clients make fully

informed decisions. A lawyer educated about sustainability is able to provide clients with

information on the impact of clients decisions in terms of advancing or hindering a green

economy and operating within an effective institutional framework for sustainable

development. Lawyers may assist their clients in two ways to advance the themes of Rio 20

and sustainable development: we can educate clients, and we can reflect sustainability values

in our own operations as individual professionals and as a profession as a whole. With

information and awareness of the relationship between law and sustainability, lawyers can

further sustainable development by helping craft legally sound frameworks for the private

and public sectors to implement the steps that will undoubtedly be a product of Rio 20.

And on talking about the role of courts, they function as an arm of government that is critical

in the separation of powers doctrine, and they play a crucial role in giving effect to legislative

and executive intentions and pronouncements. Judicial power enables sovereign states to

decide controversies between itself and its subjects and between the subjects between

themselves.

Judiciary balances the interests of society with economic development, environmental

sustainability, and the competing interests of persons and entities.

Conclusions & Recommendations: To successfully implement this National & International Framework for Sustainable

Development and to achieve sustainable development objectives and targets, the nation as a

whole must increasingly share in the common vision. All sectors, including all elements of

the state plus civil society, organised labour and business, need to take part in the social

contract to implement the emergent national strategy.

We need to promote simple actions on a large scale. As understanding of sustainable

development increases, and it becomes clear that this is the key mechanism for building

capacity and governance to achieve human development based on sustainable production and

consumptions systems, government and society across all spheres and all sectors will

approach and address the issues identified in this strategy with the seriousness they deserve.

In deciding on resource allocation and in making policy choices, the Executive should seek to

give effect to the vision of sustainability. Priorities and commitments should be clearly

articulated. While sustainability concerns do impact on all facets of life, we should keep our

focus on the identified five priority areas for strategic intervention and the importance of

mainstreaming these into the Accelerated and Shared Growth Initiatives and related

programmes. These priority areas should, over the coming three to five years, serve as

catalysts for policy changes that will facilitate the achievement of the desired ideal state as

articulated in the national vision for sustainable development.