THE CLASSIC DILEMMA
“For the greenest of environmentalists, humans are of lesser importance than the abundant and diverse flora and fauna of the planet. Humans are defined as a recent addition to the livestock and are considered to have been a wholly disruptive influence on a world which was paradise before their arrival.” The condition of the environment today is well known to all and sundry. Deforestation, global warming, climate change, toxic pollution, and many more harmful phenomena, have spread all over the world at a pace so fast that the people of the world have had no time to react to it effectively. All over, the loss of greenery, fresh air to breathe and clean water to drink is striking at the very heart of humanity. Humans however, have only themselves to blame. Rapid industrial development, expansion of civilisations by eradicating more and more natural life and the basic callousness towards natural resources, have led the world to the current situations. Various nations, which have finally realised the plight they are leading themselves to, have tried mitigating the damages. International conventions have been signed, domestic legislations enacted and safeguards put in place, yet in densely populated countries like India, these measures have proved to be not so effective because of the difficulty in their implementation and enforcement. This paper seeks to analyse environmental law and the various safeguards in India, compare it to the international scenario, and examine the balance between development and the environment.
GLOBALISATION OF ENVIRONMENTAL LAW
Environmental law embraces a curious mixture of domestic pollution legislation and a plethora of multilateral environmental agreements that are administered and enforced through a complex and often ad hoc system of courts, tribunals, arbitral panels, and directives. It is not a simple discipline, but, rather, one that is increasingly underpinned and interconnected with trade law, human rights law, and, of course, international law. In fact, it is fair to say that, currently, it is the international law arena that provides much of the energy and innovation behind the development of environmental law. It is impossible to practice or teach effectively in this discipline without a reasonably good grasp of public international law principles. The 1960s and 1970s saw the introduction of the major elements of a state based regulatory framework consisting of command and control regulation in the form of clean water, clean air, and contaminated land legislation. (The first clean water legislation in the United States was enacted in the late 1940s, although the more comprehensive amendments occurred in the 1970s). The 1970s also heralded the introduction of environmental impact assessment methodology, with the enactment of the US National Environmental Policy Act. In the 1980s, the focus turned to holding corporate management responsible for the environmental regulatory offences committed by the corporations that they headed. This was done through the introduction of the concept of ‘strict liability,’ as well as directors’ and officers’ liability, which could result in personal fines and/or imprisonment. Much attention was garnered by both governments and the courts when they articulated what constituted a due diligence defence for such captains of industry in cases concerning vicarious liability. The late 1980s and the 1990s provided the backdrop for the integration of the interconnection on the environmental stage of trade and the environment, as well as the insertion of human rights as an important element in the environmental equation—particularly in the context of international environmental law. This interconnectedness, particularly in the case of trade and human rights issues—including the right to potable...