Вы находитесь на странице: 1из 34


Environmental Law Assignment




Firstly, I would like to express my profound sense of gratitude towards the almighty “ALLAH”
for providing me with the authentic circumstances which were mandatory for the completion of
my project.

Secondly, I am highly indebted to Prof. Ghulam Yazdani at Faculty of Law, Jamia Millia Islamia
University, New Delhi for providing me with constant encouragement and guidance throughout
the preparation of this project.

Thirdly, I thank the Law library staff who liaised with us in searching material relating to the

My cardinal thanks are also for my parents, friends and all teachers of law department in our
college who have always been the source of my inspiration and motivation without which I would
have never been able to unabridged my project.

Without the contribution of the above said people I could have never completed this project.
Table of Contents

Table of Contents
1. Brief Summary…………………………………………………………………………...1
2. Introduction........................................................................................................................2
3. Sustainable Development
4. The Legal Nature of Sustainable
5. Sustainable Goals and Agenda
6. National Response to Sustainable Development………………………………………...21
7. Conclusion…...…………………………………………………………………………..29
8. Bibliography……………………………………………………………………………..30
Brief Summary

The concept of sustainable development has been conceptualized originally within the structure of
international environmental law. However, in the contemporary world of globalization, it would
be a simplification, to confine this principle only to the field of environmental protection and
development. Sustainable development has acquired the status of the most significant and
influential legal and policy-making principle in all areas of activities, in particular as an
indispensable tool in managing development law.

The best example of the changing face of sustainable development in development law is the
functioning of financial institutions, both global and regional. It may be said that “the banks have
not only an inherently economic and political incentive, but also a clear international legal
obligation to avoid causing environmental harm in developing member countries, and indeed to
incorporate environmental protection and social development objectives into their activities in
DMCs.” It cannot be denied that there is a great awareness among states and international
organizations alike that the principle of sustainable development in development law is a
combination of elements, such as environmental protection, economic development, and firstly
and most importantly, combating of poverty and generally understood social issues.

However, it is only when policies in the developing countries are democratic, based on the
participatory principle and transparency and founded on the rule of law, with a strong ad
independent judiciary that the donor countries will have confidence to deal with them.
“[d]ictatorial and corrupt regimes are not attractive to donors.” Therefore, it is of paramount
importance to secure as wide as possible participation in environmental governance of civil society
including non-governmental organizations.


The Concept of Sustainable Development

The concept of sustainable development has been conceptualized originally within the structure of

international environmental law. However, in the contemporary world of globalization, it would

be a simplification, to confine this principle only to the field of environmental protection and

development. Sustainable development has acquired the status of the most significant and

influential legal and policy-making principle in all areas of activities, in particular as an

indispensable tool in managing development law.

The concept of sustainable development has been the subject of numerous publications and

discussions. This article will be focused primarily on its one aspect, i.e., the place of the concept

of sustainable development in development law. In order to achieve this, it appears to be necessary

to outline an introduction to the general issues concerning sustainable development and its

historical background. The starting point for further discussion will be to emphasize the inherently

dynamic aspect of sustainable development and its multidisciplinary character. It is impossible to

discuss the principle of sustainable development only from one angle. Likewise, to confine it to

the very useful but succinct definition of Ms. Brundtland) would not reflect fully its versatile and

almost limitless character. The starting point of the discussion is the Report of the Secretary-

General of the United Nations on an agenda for development. The Report was requested by the

General Assembly, in particular its developing states in December 1992. The Resolution stipulated

as follows:

“…taking fully into consideration the objectives and agreements on development adopted by it,

containing an analysis and recommendations on ways of enhancing the role of the United Nations

and the relationship between the United Nations and the Bretton Woods institutions in its

promotion of international cooperation for development, within the framework and provisions of

the Charter of the United Nations and the Bretton Woods institutions’ articles of agreement,

including, inter alia, a comprehensive annotated, list of substantive themes and areas to be

addressed by the United Nations in the agenda, as well his views on principles among them, for

the consideration of states.”

The 1993 Report of the Secretary- General was intended to provide a practical guide for the agenda

for development in the economy and social fields. These included: poverty and equity issues both

inter-State and infra State; unemployment; vulnerable groups and countries, and patterns of

economic exclusion; social security issues and safety nets; migration and patterns of human end

economic movement. In 1994 the General Assembly held a special plenary meeting at a high level

“to consider ways of promoting and giving political impetus to an agenda for the development.”

The 1994 Agenda for Development stated that development is the fundamental human right and

the most secure ground for peace. The Secretary- General, in the same document gave the answer

to the question “Why An Agenda for Development?” which did not strike a positive note. He said

as follows: “[t]oday competition to bring development to the poorest countries has ended. Many

donors have grown weary of the task. Many of poor are dispirited. Development is in a crisis. (…)

There is still time to move forward together, but greater urgency is necessary. With each passing

day’s delay, the work grows more costly and difficult. While there is war, no State is securely at

peace. While there is a want, no people can achieve lasting development” (paragraphs 5 – 15).

The chapter on development in the Agenda stresses peace as the foundation for development; the

importance of economy for progress; and justice as the pillar of society, democracy and good

governance. Paragraph 124 supports self-determination in facilitating decolonization in designing

procedures to smooth and facilitate transition to democracy and in building democratic alternatives

to conflict. The Agenda considers the participation of civil society as one of the pillars of good

governance (paragraph 125). In fact, non-governmental organizations appear to play a very

important role in furthering the sustainable development. The Agenda mentions private foreign

investments; academic and scientific communities; grass root organizations; religious

organizations; and self-help groups.

"Sustainable development is development that meets the needs of the present without

compromising the ability of future generations to meet their own needs." — from the World

Commission on Environment and Development’s (Brundtland Commission) report Our Common

Future, Oxford University Press, 1987

Svante Arrhenius, a Swedish scientist, was the first person to claim in 1896 that fossil fuel

combustion may eventually result in enhanced global warming. In 1992, the Earth Summit marked

a milestone with agreement by more than 178 countries on Agenda 21, the visionary blueprint for

sustainable development. Several such significant developments and events have marked the

journey toward sustainable development. This chronology covers some of the milestones that have

considerable bearing on the interlinked components of sustainable development

The Legal Nature of Sustainable
Sustainable development’s legal nature is dependent upon two preconditions: its legal scope and
its penetration into one of the recognized sources of international law. There is little disagreement
that a proposition can be of a legal nature only if it is formulated so as to have legal effects or, in
other words, that it is legal in scope. For Virally, a proposition will have legal scope when it is
formulated ‘with the intention to modify. . . elements of the existing legal order, or. . . that its
implementation effectively achieves this result’.1 From this standpoint, sustainable development
as a proposition is clearly legal in scope. The Rio Declaration – the structuring reference for
sustainable development – is formulated in terms of rights and obligations and uses prescriptive
language throughout. This also applies to a large proportion of binding and non-binding documents
which include a proposition relating to sustainable development. Such propositions are mostly
formulated with the intention of producing legal effects within the international legal order.
However, the legal scope of a proposition, in and of itself, is not sufficient to make it law. The
proposition must also be recognized as binding, it must be a valid rule of law, and, traditionally, a
rule will be recognized as valid only if it emanates from one of the sources of international law,
notably conventions, custom, and general principles of law.2 Only then will it be recognized as a
positive norm of international law. So the question that needs to be answered is whether
propositions relating to sustainable development have penetrated these sources of international law
and have given rise to valid rules of law.

Virally, ‘Le rôle des “principes” dans le développement du droit international’, in Faculté de droit de l’Université de
Genève, Institut universitaire des hautes études internationales, Recueil d’études de droit international en hommage
à Paul Guggenheim(1968), at 531, 535

As listed in Art. 38(1) of the ICJ Statute.

A. Sustainable Development and Written International Law

Sustainable development has, over the last 30 years, received wide support in a vast array of non-
binding international legal documents. It finds expression in countless Declarations of states,
resolutions of international organizations, programmes of action, and codes of conduct.3 To the
extent that these various instruments are not recognized as among the formal sources of
international law, they are incapable, in and of themselves, of giving rise to a valid legal rule
relating to sustainable development, irrespective of the legal strength of their formulation. But
sustainable development also finds expression in a far from negligible number of international
treaties. It is included in over 300 conventions, and a brief survey of these is revealing from the
point of view of the categories of conventions at stake, the location of the proposition relating to
sustainable development, and the function attributed to it. References to sustainable development
can indeed be found in 112 multilateral treaties, roughly 30 of which are aimed at universal
participation. This points to a certain level of consensus among the international community
concerning the relevance of sustainable development for international law. But what is particularly
significant about the inclusion of sustainable development in conventional law is the location of
this inclusion. A common impression among international lawyers is that even though sustainable
development receives recognition in a great number of treaties, this recognition is of little legal
significance since such references are mainly confined to the 
preamble, which is not binding.
However an empirical analysis shows that 207 of these references are to be found in the operative
part of the conventions which is technically binding on the parties. Closer study further reveals
that for the most part sustainable development is referred to as an objective that contracting parties
must strive to achieve, occasionally with an indication of the types of measures to be undertaken
to that effect.

Clearly, then, sustainable development has widely penetrated treaty law. However, unlike in non-
binding instruments such as the Rio Declaration, the formulation of provisions relating to
sustainable development in formally binding international treaties can be rather flexible. The
wording can be vague and imprecise, characterized by the use of the conditional, and the provisions
are often closer to setting out an incentive than purporting to be strictly constraining. For some,

V. Barral, ‘Le développement durable en droit international: Essai sur les incidences juridiques d’un concept
évolutif’ (PhD thesis on file at the EUI, Florence).

because of their softness, such provisions would be incapable of giving rise to valid rules of
international law. However the softness of the obligation set out in a treaty provision should not
be an obstacle to its validity and binding legal nature. For Weil the ‘caractère imprécis ou peu
contraignant de certaines dispositions insérées dans des traités ... n’a rien à voir avec celle de
leur caractère juridique’.4 He also argues that the many conventional provisions that set out an
incentive, such as those where parties commit to ‘strive to’ or ‘promote’, are in and of themselves
perfect legal rules; they are valid norms of international law. Following this line of thought, the
softness of the provisions relating to sustainable development does not bar them from being valid
normative propositions; rather, it just increases the margin of appreciation of the contracting
parties in the execution of their obligations. 5 Certainly, in most cases conventional provisions
relating to sustainable development are too soft to impose an obligation on states to develop
sustainably. But they may still impose an obligation on states to ‘strive to achieve’ or ‘promote’
sustainable development. Such an obligation, an obligation of means, far from being deprived of
normative character, is just a norm with a different object: not one that requests a result to be achieved, but
only means to be put in place to try to achieve that result. Such conventional provisions can clearly grant
sustainable development its normativity. The relative effect of treaties however means that any
conventional provision relating to sustainable development will, in principle, be binding only on the parties
to that agreement. In order to ascertain whether sustainable development benefits from a general normative
reach, it must find reflection in customary international law.

B. Sustainable Development and Customary International Law

Academic objection to the existence of a general rule of customary international law relating to
sustainable development has been fierce, and is based on a variety of arguments. If some see
enough evidence of opinio juris and state practice to prove the existence of a customary rule, be it
a very abstract and general one that requires case by case concretization, others avoid this difficult
question by emphasizing that the relevance of sustainable development is to be found elsewhere
than in its legal nature, and notably in the influence it exerts on international law as a new branch
of that discipline. Yet another stream of commentary denies that sustainable development has

Weil, ‘Observations de M. Prosper Weil’, Annexe: Observations des membres de la Commission sur le rapport
provisoire, 60-1 AIDI (1983) 366, at 370.
Virally, ‘La distinction entre textes internationaux ayant une portée juridique dans les relations mutuelles entre
leurs auteurs et textes qui en sont dépourvus’, 60 AIDI(1983) 328, at 331–336.

reached the stage of being a customary norm, or is even capable of that. The most powerful
objection to sustainable development’s customary status has been articulated by Lowe, for whom
‘there is, in the catalogue of treaty provisions, declarations and so on that use the term “sustainable
development”, a lack of clear evidence that the authors regarded the concept as having the force
of a rule or principle of customary international law’. And that is because ‘the concept of
sustainable development is inherently incapable of having the status . . . of a rule of law addressed
to States and purporting to constrain their conduct’. Lowe reaches this conclusion because treaty
and other provisions relating to sustainable development lack fundamentally norm-creating
character and cannot, as such, form the basis of a general rule of international law. In his view only
a formula such as ‘states must develop sustainably’ would have this character. It is apparent from
the foregoing that when commentators assess sustainable development’s customary nature they
look for an answer to the question: Is there a general obligation to develop sustainably? And
certainly the answer is no. The flexible formulations relating to sustainable development mean that
evidence of opinio juris and state practice of an obligation to develop sustainably is impossible to
ascertain. However, to conclude that there is no such general obligation does not mean that
sustainable development does not find reflection in custom. Such customary character can indeed
flow from a positive answer to a different question: is there an obligation to implement measures
aimed at achieving sustainable development? Or is there a general obligation to promote
sustainable development? A positive answer to these questions would affect only the normative
category (obligations of means rather than of result) sustainable development belongs to, not its
normative nature.The international lawyer searching for the customary nature of a legal
proposition naturally turns to case law for support, as judicial assertions, in ensuring the law’s
foreseeability, offer a degree of security for legal subjects. Judicial assertions thus radiate well
beyond the parties to the case, and because the existence of custom is so difficult to prove, the
authority of judicial decisions is even more pronounced with respect to customary international
law. But because of the special authority given to their assertions, international judges are also
careful not to acknowledge the existence of custom too readily. For them to maintain their
authority, their decisions must remain acceptable to the states. This caution exercised by
international judges applies equally for sustainable development’s potentially customary nature.
Although the relevance for international law of sustainable development has been acknowledged
by judicial or arbitral decisions, judges and arbitrators have not gone so far as to clearly recognize

its customary nature, although they came close to it on one occasion. In the Shrimp – Turtle case
the WTO’s Appellate Body recognized the relevance of sustainable development for solving the
dispute, and even drew specific legal consequences from it, but fell short of a customary
recognition. 6 The legal implications of sustainable development were drawn in a strictly
conventional capacity, because of the inclusion of that objective in the WTO Agreement’s
preamble. Crucially, the ICJ recognized the significance of sustainable development independently
of its inclusion in a treaty. It did so for the first time in the Gabcˇíkovo-Nagymaros case, where it
decided that since the economic treaty between Hungary and Slovakia was still in force, it had to
be implemented. But current norms of international environmental law had to be taken into
consideration by the parties in doing so, because of the need to reconcile economic development
with environmental protection, which the Court thought was ‘aptly expressed in the concept of
sustainable development’. In the Pulp Mills case 7 the Court made some limited but interesting
comments on the legal implications of sustainable development. It recalled its earlier findings in
the Gabcˇíkovo-Nagymaros case, and went a step further by ascertaining that the object of Article
27 of the Statute of the River Uruguay (which Argentina claimed Uruguay had breached) was
‘consistent with the objective of sustainable development’. Although this fell short of granting it
customary nature, sustainable development is now more than just a concept; it is an objective, and
an objective with which specific state conduct (that defined in Article 27) must be consistent.
Unsurprisingly, it is an arbitral tribunal rather than the ICJ that has taken the boldest step towards
the recognition of a customary status for sustainable development. In the Iron Rhine case the
tribunal was of the view that international law today ‘require[s] the integration of appropriate
environmental measures in the design and implementation of economic development activities’,
and that this integration requirement means that ‘where development may cause significant harm
to the environment there is a duty to prevent, or at least mitigate, such harm’, which ‘has now
become a principle of general international law’.8 By recalling paragraph 140 of the Gabcˇíkovo-
Nagymaros case, the arbitral tribunal also leaves a strong impression that sustainable development

United States – Import Prohibition of certain Shrimp and Shrimp Products, WT/DS58/AV/R, 1998, at paras. 127–
Case Concerning Pulp Mills on the River Uruguay, ICJ, Judgment, 20 April 2010, available at: www.icj-

Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Belgium and the
Kingdom of the Netherlands, 27 RIAA (2005) 35, at para. 59.

and integration of environmental measures in economic development projects are two facets of the
same coin, which would also suggest that, on this occasion, the arbitral tribunal did indeed accept
the customary nature of sustainable development.

In the absence of clear judicial recognition of its customary nature, one can still test whether
sustainable development meets customary requirements which, according to Article 38(1)(b) of
the ICJ Statute, are the existence of a general practice (state practice), accepted as law (opinio
juris). Whereas traditionally customs come to be formed because the constancy of the conduct of
states results in their belief that such conduct has become obligatory, as far as sustainable
development is concerned, as well as most modern international environmental law, states first
come to believe in the necessity to create the rule, rather than in its existence. For René-Jean Dupuy
the creation of a ‘wild custom’9 can result from the will of legal subjects to create a new rule.
Negotiation and the adoption and re-adoption of similar rules will eventually lead to the
‘impregnation of legal mentalities’, and the practice of states thus follows rather than precedes the
formation of opinio juris. States’ opinio juris on the binding nature of sustainable development
can thus result from the wealth of resolutions, declarations, gentlemen’s agreements, programmes
of action, international and national judicial decisions, national legislation, and conventional
provisions referring to it, at least in so far as these formulations are in the form of sufficiently
similar legal rules. Clearly provisions relating to sustainable development vary sometimes greatly
from one instrument to another. However, there is still an overarching coherence between them as
sustainable development is almost always defined as an objective to aspire to. These many legal
acts also constitute useful precedents in the formation of a general practice relating to this opinio
juris, to the extent that states’ conduct is in line with them. States do constantly and generally adopt
national sustainable development strategies, report to the Commission on Sustainable
Development, design development projects that take into account environmental considerations,
and implement environmental impact assessments with a view to achieving sustainable
development. Obviously these actions lack uniformity, which is an essential requirement in order
for precedents to form meaningful state practice. However, sustainable development itself requires
various types of conduct to be adopted, because it is an objective, because it is intrinsically

Dupuy, ‘Coutume sage et coutume sauvage’, in Mélanges offerts à Charles Rousseau: La communauté
internationale (1974), at 75. For this author a wild custom is one that is the result of legal politics rather than belief,
but also one that can crystallize over a much shorter period of time.

evolutive, and because as an obligation of means it requires a series of different types of effort
towards the fulfilment of the objective it lays down. Hence, conduct aimed at achieving sustainable
development, even if lacking uni formity, can still form valid precedents constituting evidence of
the existence of a general practice of states. Despite clear judicial confirmation, it can thus be
concluded that sustainable development, as an objective, already constitutes a principle of
customary law, even if this principle is a very general one, with a high degree of abstraction and
which requires case by case substantiation.

Sustainable Goals and Agenda 2030
SDGs or Sustainable Development Goals are nothing but a set of aims to endure the progress of
Millennium Development Goals or MDGs which was assigned to fight against extreme poverty,
hunger and preventable diseases. SDGs will also fight against these, along with ensuring more
veritable development and environmental sustainability. They were adopted by the all the world’s
nations at the United Nations in2015. It is a guideline for global development till 2030.SDGs
contain 17 goals and these goals are providing abundant opportunities to each and every person in
the world. It tries to cover more or less every aspect of human life. There are 169 targets for the
17 goals. Each target has between 1 and 3 indicators used to measure progress toward reaching the
targets. In total, there are 304 indicators that will measure compliance. The United Nations
Development Programme has been asked to provide easy to understand lists of targets and facts
and figures for each of the 17 SDGs. In September 2015, Heads of State and Government agreed
to set the world on a path towards sustainable development through the adoption of the 2030
Agenda for Sustainable Development. This agenda includes 17 Sustainable Development Goals,
or SDGs, which set out quantitative objectives across the social, economic, and environmental
dimensions of sustainable development all to be achieved by 2030. The goals provide a framework
for shared action “for people, planet and prosperity,” to be implemented by “all countries and all
stakeholders, acting in collaborative partnership.”

As articulated in the 2030 Agenda, “never before have world leaders pledged common action and
endeavor across such a broad and universal policy agenda.” 169 targets accompany the 17 goals
and set out quantitative and qualitative objectives for the next 15years. These targets are “global
in nature and universally applicable, taking into account different national realities, capacities and
levels of development and respecting national policies and priorities.” A set of indicators and a
monitoring framework will also accompany the goals. The indicators are defined by the Inter-
Agency and Expert Groupon SDG Indicators (IAEG-SDGs), which will present its
recommendations to the UN Statistical Commission in March 2016. The 17 Sustainable
Development Goals form a cohesive and integrated package of global aspirations the world
commits to achieving by2030. Building on the accomplishments of their predecessors the MDGs,
the SDGs address the most pressing global challenges of our time, calling upon collaborative

partnerships across and between countries to balance the three dimensions of sustainable
development economic growth, environmental sustainability, and social inclusion.

Transitioning from MDGs to SDGs:

This United Nations Development Programme (UNDP)- World Bank Report pulls together the
main lessons learned from the MDGs Reviews for the UN system and for its engagement at the
country level, which took place at the united Nations(UN) System Chief Executives Board for
Coordination (CEB). The Reviews, which brought together UN and World Bank Group staff,
systematically identified the country situation, the bottlenecks to MDGs attainment, and potential
solutions to be implemented. Since many MDGs have been absorbed into the Sustainable
Development Goals (SDGs), many of the observations and solutions provided could prove useful
to the implementation of the SDGs. Sixteen countries from across the world and the sub-region of
the Pacific Island countries took part in the CEB reviews, addressing several different MDGs.
These strongly advocated for cross-sectoral and cross-institutional thinking within the UN system
to accelerate progress on off-track MDGs targets. Bottleneck analysis, proposed under the MDGs
Acceleration Framework (MAF), helped UN system organizations fully appreciate that investing
in solutions within a particular sector may be necessary, but not sufficient to gain enough
momentum to meet a particular target. Three main conclusions clearly apply to the transition from
the MDGs to the 2030 Agenda:

1. Support cross-institutional collaboration between the UN system and the World Bank;
2. Advance better understanding of cross-sectoral work, and the interrelatedness ofgoals and
targets; and
3. Promote global and high-level advocacy.

Sustainable Development Goals (SDGs):

On 25 September 2015, the United Nations (UN) General Assembly adopted the 2030Agenda for
Sustainable Development, along with a new set of development goals that are collectively called
the Sustainable Development Goals (SDGs). The Agenda is a culmination of many years of
negotiation and was endorsed by all 193 member nations of the General Assembly, both developed
and developing and applies to all countries’ Secretary General Ban Ki- Moon noted that “the new

agenda is a promise by leaders to all people everywhere. It is an agenda for people, to end poverty
in all of its forms an agenda for the planet, our common home.”

The Sustainable Development Goals (SDGs), otherwise known as the Global Goals, are a universal
call to action to end poverty, protect the planet and ensure that all people enjoy peace and
prosperity. These 17 Goals build on the successes of the Millennium Development Goals (MDGs),
while including new areas such as climate change ,economic inequality, innovation, sustainable
consumption, peace and justice, among other priorities. The goals are interconnected often the key
to success on one will involve tackling issues more commonly associated with another. The SDGs
work in the spirit of partnership and pragmatism to make the right choices now to improve life in
a sustainable way for future generations. They provide clear guidelines and targets for all countries
to adopt in accordance with their own priorities and the environmental challenges of the world at
large. The SDGs are an inclusive agenda. They tackle the root causes of poverty and unite us
together to make a positive change for both people and planet. The SDGs of 17 Goals with
169 Targets came into effect on 1 January 2016 and will guide the international development
agenda over the next 15 years. A global indicator framework comprising a list of 304 unique
indicators was adopted by the United Nations Statistical Commission at its 47th Meeting in March

National Response to Sustainable
"Earth provides enough to satisfy every man's needs, but not every man's greed."
- Mahatma Gandhi

Judicial Overview:

India being a growing economy has seen rampant industrialization and development in recent past,
which resulted in adverse impact on the environment. Witnessing such degradation, the Supreme
Court of India in a bid to protect the environment, played a significant role in shaping and adopting
the doctrine of Sustainable Development. This crusade for safeguarding the environment was led
by Justice Kuldip Singh, who famously came to be known as the 'Green Judge'.

The doctrine of Sustainable Development was implemented by the Supreme Court in the case
of Vellore Citizen Welfare Forum vs. Union of India10. The Petitioners therein had filed a petition
in public interest under Article 32 of the Constitution of India against the pollution caused by
discharge of untreated effluent by the tanneries and other industries in the river Palar in the State
of Tamil Nadu. In the instant case, the Supreme Court held that the precautionary principle and
polluter pays principle are a 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."

Thereafter in a number of judgments, the Apex Court explained and implemented the doctrine of
Sustainable Development. The Hon'ble Supreme Court of India in Narmada Bachao Andolan vs.
Union of India 11 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

AIR 1996 SC 2715
(2000) 10 SCC 664

mitigation". In T.N. Godavaraman Thirumulpad vs. Union of India12, 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 13, 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". Hence, importance has been given both to development and environment
and the quest is to maintain a fine balance between environment and economic development.

The Supreme Court of India emphasised on the need to set up specialised environment courts for
the effective and expeditious disposal of cases involving environmental issues, since the right to
healthy environment has been construed as a part of right to life under Article 21 of the
Constitution. 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 Pradesh, 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."

However in 1991, in the Rural Litigation and Entitlement Kendra vs. State of U.P. the Supreme
Court allowed a mine to operate until the expiry of lease as exceptional case on condition that land
taken on lease would be subjected to afforestation 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.

(2008) 2 SCC 222
1996 (5) SCC 281

Union of India, 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

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 realised 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. 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.

Establishment of the National Green Tribunal

Keeping in mind the risk to environment and human health due to unchecked and rampant
industrialisation and the decisions taken at the United Nations Conference on the Human
Environment held at Stockholm in June, 1972, as well as United Nations Conference on
Environment and Development held at Rio de Janeiro in June, 1992, to both of which Conferences
India was a party, the legislature enacted the National Green Tribunal Act, 2010 (Act). Vide the
Act, the National Green Tribunal (NGT) was established for effective and expeditious disposal of
cases involving multi-disciplinary issues relating to environment.

Powers of NGT

Under Section 19 of the Act, NGT has been empowered to hear all the civil matters related to
environment. Significantly, the NGT is not bound by the procedures of the Code of Civil
Procedure, 1908 and is bound by the principles of natural justice.14While deciding a case, the NGT
should apply the principles of Sustainable Development, the precautionary principle and polluter
pays principle.15 In furtherance of its duties, the NGT has furthered the crusade of environment
protection basis the doctrine of Sustainable Development. The NGT in the case of Prafulla
Samantray vs. Union of India16 (POSCO Case), ordered suspension of the establishment of the
POSCO steel plant in Odisha, as in the opinion of the NGT, though there is a need for industrial
development, and employment opportunities created by projects such as Posco's steel plant, but at
the very same time such development should be within the parameters of environmental concerns
and should satisfy the principles of sustainable development. The Hon'ble Tribunal in the case
of Sarang Yadhwakar and others vs. The Commissione 179, held, "the principle of sustainable
development takes within its ambit the application of the 'principle of proportionality' and the
'precautionary principle'. In other words, one must, while permitting development, not only ensure
that no substantial damage is caused to the environment but also take such preventive measures,
which would ensure no irretrievable damage to the environment even in future on the premise on
intergenerational equity".

Even though the Tribunal has time and again stoutly applied the doctrine of Sustainable
Development and valued the local population over economic benefits from a project, the NGT has
also passed judgments in favour of industries when the economic development surpasses the
environmental costs. The NGT in various cases has held in favour of project/ industries where an
industry/project has taken adequate preventive steps, mitigatory measures and are armed with
detailed Environment Management Plan backed by scientific studies. In Sterlite Industries (India)
Pvt. Ltd. vs. Tamil Nadu Pollution Control Board and ors., 18 the NGT while giving certain
directions held in favour of the industry and stated, "The environmental restrictions must operate

Section 19(1), The NGT Act,2010
Section 20, The NGT Act,2010
Appeal No. 8 of 2011, NGT
Appeal No. 2 of 2013, NGT
Appeal No. 57 and 58 of 2013, NGT

with all their rigour but no action should be suspicion-based which itself is not well-founded.
Precautionary principle should be invoked when the reasonable scientific data suggests that
without taking appropriate preventive measures there is a plausible indication of some
environmental injury or health hazard."

Sustainable Development Goals

The United Nations Conference on Sustainable Development in Rio de Janeiro in 2012 laid down
seventeen Sustainable Development Goals (SDGs) to encounter the urgent environmental,
economic and political challenges being faced by the world. Seventeen goals were set: to end
poverty; zero hunger; quality education; gender equality; clean water and sanitation; affordable
and clean energy; decent work and economic growth; industry innovation and infrastructure;
reduced inequalities; sustainable cities and communities; responsible consumption and production;
climate action; life below water; life on land; peace, justice and strong institutions and partnership
for the goals.

One can see that these goals are achievable only when nations forget their boundaries and work
together as global citizens. One of the major goal is to combat climate change, which would entail
climate action, industry innovation and infrastructure, use of affordable and clean energy and
building sustainable cities and communities.

Combating Climate Change

Climate change is a global phenomenon, which transcends national boundaries. Emissions

anywhere affect people everywhere and hence it's a global issue, which requires global solution.
International cooperation between all nations is required to help developing nations become green
or low-carbon economies. The rich nations, such as USA (one of the most polluting nations, having
the largest per capita carbon emission) must help developing nations such as India, in moving
towards low-carbon economies. The rich countries have a larger role to play and must commit to
lowering their carbon footprint and help the developing nations monetarily and by way of
exporting technical know-how to developing nations. Commitment to Climate Change can be

secured from all Nations basis principles of "climate justice" and principles of equity and common
but differentiated responsibilities and respective capabilities.

Paris Agreement

In order to address climate change, countries adopted the Paris Agreement at Conference of the
Parties (COP 21) held in Paris on 12.12.2015. In the agreement, all countries have agreed to work
to limit the global rise in temperature rise to well below 2 degrees Celsius pre-industrial levels,
and moreover, strive to lower it to 1.5 degrees Celsius. The Paris Agreement was adopted by 185
nations in December and will come into force when 55 countries, which contribute to at least 55%
of total global emissions ratify the Agreement. This Agreement is open for signatures at the United
Nations Headquarters in New York from 22.04.2016 until 21.04.2017 by States and the regional
economic integration organizations that are Parties to the United Nations Framework Convention
on Climate.

The implementation of the Paris Agreement in letter and spirit is essential for the achievement of
the Sustainable Development Goals, as set by the United Nations. This Paris Agreement provides
for climate actions to be implemented by ratifying nations, which will reduce emissions and build
climate resilience. The Paris Agreement is based on voluntary action and commitment made by
each country based on its respective national circumstances being Intended Nationally Determined
Contribution (INDCs) and does not impose legally binding emission reduction targets like the
Kyoto Protocol. Though the emission reduction targets are not legally binding, the process of
regular review and submission of INDCs is binding.

India's Role

India submitted its INDC on 01.10.2015 prior to the Conference of Parties in Paris and ratified the
Paris Agreement on 02.10.2016 on the birth anniversary of Mahatma Gandhi. India's INDC is
ambitious and shows strong commitment to combating climate change. India's % share of global
Annual emission is 5.7%, whereas USA's share is 15.1% and China's 28.6%. Thus, even though
on a global scale India is not a part o cause of problem, it has through its INDCs shown its
commitment to be a part of the solution.19


India's INDC emphasizes that in order to reach its commitment it's most important that the means
and funds for implementation be provided by developed nations, technology transfer and capacity
building. It also estimates that at least $2.5 trillion (at 2014-15 prices) will be required for meeting
India's climate change actions between now and 2030.

India in its INDC has committed primarily to reduce emission intensity of its GDP by 33-35% by
2030 from 2005 levels; achieve about 40% cumulative electric power installed capacity from non-
fossil fuel based energy resources (mainly renewable like wind and solar power) by 2030; and to
create an additional carbon sink of 2.5 to 3 billion tonnes of CO2 equivalent through additional
forest and tree cover by 2030.20

Given that a large population of India is dependent upon agrarian economy, and lives in vast
coastal areas and Himalayan regions, India is highly vulnerable to adverse effects of Climate
change. However, India also has 30% of its population under poverty; 20% living without proper
housing; 25% living without electricity and is a growing economy, thus economic and
infrastructural development is critical too. Thus, in this milieu it is most important that
development projects be encouraged and while being conceptualised, the doctrine of Sustainable
Development be kept in mind.

In order to maintain a balance between development and environment, the principle of Sustainable
Development which encompasses the 'Precautionary Principle' must be followed while envisaging
a project. This would prevent any anticipated environmental impact a project may have by
following and incorporating mitigating measures. Right from the stage of selection of site, to
adopting efficient and environmental friendly measures at each stage and facet of construction to
avoid or minimise environment de-gradation, to providing mitigatory measures and monitoring
the impact of a project on the environment/eco-system and thereafter providing for restorative
action in case of any degradation is imperative in today's pro- environment climate and is also the
need of the hour.

The developers today must be conscious of the environment and adopt a green, pro- environment,
scientific and energy efficient mind-set for each stage of a project. These measures, may increase
the over-all expenditure of the project, but in the longer run the benefits would surpass such costs.

India's Intended Nationally Determined Contribution

The Indian Government in furtherance of its INDCs and National Action Plan on Climate Change
incentivises developers and promotes use of green and energy efficient measures and these
incentives can be used by developers to off-set any additional green costs.

Undeniably, Sustainable Development is the need of the hour. With the advent of energy efficient
technology, a harmonious marriage between development and environment is possible. It is time
that each one of us adopt an 'energy-efficient and green' mind-set and use the natural resources
available equitably, judiciously and save them for our future generations, as the best way to predict
future is to create it.

2030 Agenda deserves to be considered as a historic step forward for the integration of
environmental concerns in the wider context of sustainable development policy instruments, while
also considering some of the criticism directed towards its perceived flaws. In addition, we have
reflected on the possibility of building mutual supportiveness between the SDGs and international
environmental law, examining the potential for these frameworks to address existing gaps with the
goal of promoting environmental sustainability as an overarching priority of the international
community. Moreover, we have focused our attention on an interpretation of sustainable
development as a principle of integration which appears consistent with the vision outlined in the
Agenda and shows the potential to support the crystallization of such principle as either a
customary norm or a general principle of law.

On the one hand, the evident improvement of the environmental dimension of the SDGs over that
of the MDGs needs to be evaluated against the long-standing shortcomings of international
environmental law (i.e. emphasis on the sovereignty of States, lack of mechanisms to ensure
compliance and/or ineffectiveness of regulatory regimes, insufficient resources, fragmentation,
and so forth), some of which are reflected in Resolution 70/1 itself and which together cast doubt
into the possibility of a more effective system of global environmental governance emerging from
the post-2015 agenda. On the other, it should be noted that the UN Sustainable Development
Summit (along with the Paris Climate Change Conference) is a symbolic milestone whose
importance stretches far beyond textual analysis. Indeed, one of the main qualities of the SDGs
lies in their aspiration to build awareness and trust among institutions and stakeholders
(particularly in the private sector) about the transformational change that needs to happen if
humanity is to embark on a sustainable development trajectory. From a legal perspective,
investigating the extent to which this aspiration will be reflected in the subsequent practice of
States and translated into norms to be interpreted and applied by international and domestic courts
will shed light on the real potential of the 2030 Agenda to deliver on its ambitious Goals

 ABI-SAAB, Georges. Les résolutions dans la formation du droit international du
développement. Geneva: Institut Universitaire de Haute Etudes Internationales, 1971.
 AFRICAN UNION COMMISSION. Agenda 2063. The Africa We Want (Final edition
published in 2015). Available at: . Accessed: 24 February 2015.
 A GLOBAL Perspective on the Anthropocene. Science, v. 334, issue 6052, p. 34 e ss.,
2011. ASSELT, Harro van. Editorial. RECIEL, v. 23, n. 3, p. 285 e ss., 2014.
 BARRAL, Virginie; DUPUY, Pierre-Marie. Principle 4: Sustainable
 Development Through Integration. In: VINUALES, Jorge E (ed). The Rio Declaration on
Environment and Development: a Commentary. Oxford: Oxford University Press, 2015.
 BARRAL, Virginie. Sustainable Development in International Law. European Journal of
International Law, v. 23, n. 2, p. 377 e ss, 2012.
 BENIDICKINSON, J. et al (eds). Environmental Law and Sustainability After Rio.
Cheltenham, Northampton: Edward Elgar, 2011.
 BODANSKY D.; BRUNNÉE, Jutta; HEY, Ellen (eds). Oxford Handbook of International
Environmental Law. Oxford: Oxford University Press, 2007.
 BOS, Maarten. The Identification of Custom in International Law. German Yearbook of
International Law, v. 25, p. 11 e ss., 1982.
 BOTHER, Michael. Legal and Non-Legal Norms – A Meaningful Distinction in
International Relations?. Netherlands Yearbook of International Law, v.11, p. 65 e ss.,
 BOYLE, Alan E.; FREESTONE, David A. C.. Introduction. In BOYLE Alan E.;
FREESTONE, David A. C. (eds). International Law and Sustainable Development: Past
Achievements and Future Challenges. Oxford: Oxford University Press, 1999.
 BROOKS, Thomas M.; LAMOREUX, John F.; SOBERON, Jorge. IPBES ≠ IPCC. Trends
in Ecology and Evolution, v. 29, p. 543 e ss., 2014.
 BRUNNÉE, Jutta. International Legislation. Max Planck Encyclopedia of Public
International Law. Online edn, 2008. Available at: . Accessed: 5 Mar. 2016. CBD. Decision
X/2, Strategic Plan for Biodiversity 2011-2020. 29 October 2010. UN Doc

UNEP/CBD/COP/DEC/X/2. CHENG, Bin. General Principles of Law as Applied by
International Courts and Tribunals. Cambridge: Cambridge University Press, 1953.