An Introduction to International Law - TERI School of ... cases are brought before the ... disputes relating to or connected with facts or situations of hostilities, armed ... An Introduction

Introduction to International Law

Shiju M V,

Department of Policy Studies,

TERI University,

New Delhi

Background

Pollution does not respect political boundaries

Ecological interdependence

Objectives

To refresh certain basic concepts about International Law

To understand the legal instruments that have a bearing on the environment in general and the forestry sector in particular

To appreciate the different forms that these instruments take and the legal consequences of the same.

Objectives

To understand the obligations imposed on India

To understand how these instruments are implemented in India

Contents

An Introduction to International Law (Intended as a refresher discussion)

India and International Environmental Law

Forest Related International Instruments

An Introduction to International Law

Different from national/municipal law

No world legislature

No world executive

No world judiciary


International Court of Justice is not a “world court” in the true sense of the term.

Only States may apply to and appear before the International Court of Justice. International organizations, other collectivities and private persons are not entitled to institute proceedings before the Court.


The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto.


Special agreement

Compulsory jurisdiction in legal disputes The Statute provides that a State may recognize

as compulsory, in relation to any other State accepting the same obligation, the jurisdiction of the Court in legal disputes. These cases are brought before the Court by means of written applications


Indian Voluntary declaration 18 September 1974

I have the honour to declare, on behalf of the Government of the Republic of India, that they accept, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the International Court of Justice over all disputes other than:


(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement;

(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;

(3) disputes in regard to matters which are essentially within the domestic jurisdiction of the Republic of India;


(4) disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defense, resistance to aggression, fulfillment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;


(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court; (6) disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations, unless the Government of India specially agree to jurisdiction in each case;


(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction; (8) disputes with the Government of any State with which, on the date of an application to bring a dispute before the Court, the Government of India has no diplomatic relations or which has not been recognized by the Government of India; (9) disputes with non-sovereign States or territories;


(10) disputes with India concerning or relating to: (a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries; (b) the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels; (c) the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it; (d) the airspace superjacent to its land and maritime territory; and (e) the determination and delimitation of its maritime boundaries.


(11) disputes prior to the date of this declaration, including any dispute the foundations, reasons, facts, causes, origins, definitions, allegations or bases of which existed prior to this date, even if they are submitted or brought to the knowledge of the Court hereafter. (12) This declaration revokes and replaces the previous declaration made by the Government of India on 14th September 1959. New Delhi, 15 September 1974. (Signed) Swaran SINGH, Minister of External Affairs.


Nature of International Law

International law is the body of rules which are legally binding on states in their intercourse with each other.

Oppenheim


Basis of International Law

Common consent

It cannot mean that all states must at all times expressly consent to every part of the body of rules constituting international law, for such common consent could never in practice be established.


Sources of International Law 1. The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Article 38 Statute of the International Court of Justice.


International Conventions

Law of Treaties

An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

Art. 2 (1) (a) Vienna Convention on the Law of Treaties, 1969.


Multilateral Treaty

Existence of more than two parties

Bilateral Treaty

Between two parties

Regional Treaty

Between parties in the same region


Variety of Designations

Treaties, Agreements, Acts, Conventions, Declarations, Protocols.

The designation alone does not affect the binding force of the instruments or its characterization as a treaty.

Convention on Biological Diversity

Cartagena Protocol on Biosafety

United Nations Framework Convention on Climate Change

Kyoto Protocol


Adoption of a treaty

The states draw up a text

The expression of agreement with the text is known as adoption of a treaty.

1.The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2.

2.The adoption of the text of a treaty at an international conference takes place by the vote of two thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule (Art. 9 Vienna Convention)


Signature

Expresses the consent of the state to be bound by the treaty.

It may be subject to ratification


Ratification

“ratification”, “acceptance”, “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty


Reasons for ratification

States need time before they feel able to commit themselves to it.

The constitutions may provide for a mechanism for undertaking international obligations

Needs time to enact the enabling legislations.


Refusal of ratification

The ultimate right to refuse to ratify is not impaired

A sate cannot sign a treaty and subsequently conduct itself as if it had no connection with it or as if its signature were a mere act of authentication.


A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Art. 18 Vienna Convention.


International Custom

One of the primary sources of international law

Two elements

State practice

Acceptance of the practice as obligatory

Opinio juris


State Practice

Common and consistent

Uniform practice is not necessary

Sufficient degree of participation

No substantial dissent

Persistent objector


Opinio juris

Feeling of obligation

Legality of the use of nuclear weapons (1996)


Implementation at the Domestic Level

Article 51 DPSP

Promotion of International Peace and Security


Article 253

Power of the Parliament to enact a legislation on a matter listed in the State list

For implementing an international convention

The Environmental Protection Act, 1986

The Biological Diversity Act, 2002.

India and International Environmental Law

Shiju M V,

Department of Policy Studies,

TERI University,

New Delhi

International Environmental Law

The conditions which have contributed to the emergence of International Environmental Law

Realisation that ecological interdependence does not respect national boundaries

Issues previously considered to be matters of domestic concern are no longer confined to national boundaries and have international implications

These can only be addressed by international law and regulation.


The process of developing international legal principles have been

Piecemeal

Gradual

Often reactive to particular incidents or availability of new scientific evidence


UNCED

Environmental concerns are categorised under the following:

Protection of various environmental media

Atmosphere

Land resources

Forests

Biological diversity

Freshwater resources

Oceans, seas and marine living resources


Regulation of particular activities and products

Biotechnology

Toxic chemicals

Agricultural products

Hazardous waste

Solid waste and sewerage related issues

Radioactive waste

Introduction to Indian Environmental law

Development has been gradual

International law and developments at the international level have influenced Indian law

Legislation

Judicial decisions

Executive decisions

Indian Environmental Law

Trigger Events Stockholm Conference,

1972 “Are not poverty and

need the greatest polluters?...How can we speak to those who live in villages and slums about keeping the oceans, the rivers and the air clean when their own lives are contaminated at the source?”

Smt. Indira Gandhi

Indian Environmental law

Trigger events

Bhopal gas tragedy

“Social transformation occurs only when thinking humanity remains capable of suffering and the suffering humanity begins to think.”


Trigger events

Rio Conference, 1992


Article 253 has been used to enact most of the legislations in the field of environment

Air (Prevention and Control of Pollution) Act, 1981

Environment (Protection) Act, 1986

Biological Diversity Act, 2002

National Green Tribunal Act, 2010

Role of Judiciary

Judiciary is playing a major role in the development of Indian Environmental law

Judicial activism

Judicial Decisions

“If the mere enactment of the laws relating to protection of environment was to ensure a clean and pollution free environment, then India would, perhaps, be the least polluted country in the world. But this is not so. There are stated to be over 200 Central and State statutes which have at least some concern with environment protection, either directly or indirectly. The plethora of such enactments has, unfortunately, not resulted in preventing environmental degradation which on the contrary, has increased over the years.

The courts are ill – equipped and it is Not their function to see day to day enforcement of law. This is an executive function which it is bound to discharge …. The effort of this court while dealing with PILs relating to environmental issues, is to see that the executive authorities take steps for implementation and enforcement of law.”

Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281

General principles and rules

Permanent Sovereignty over Natural Resources

Precautionary Principle

Sustainable Development

Sovereignty over natural resources

States‟ sovereign right to exploit natural resources and the duty not to cause transboundary environmental damage Principle 21 Stockholm Declaration States have, in accordance with the Charter of the

United Nations and the principles of international law, 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.


Principle 2 Rio Declaration

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental 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.


Reflects customary principle of international law

Advisory opinion on the legality of the threat of use of Nuclear weapons (ICJ 1996)


Centre for PIL v. Union of India (2012)

At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, the same can be understood as naturally occurring elements which have an intrinsic utility. They may be renewable or non renewable.


They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural, form. A natural resource's value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. As the State in which a natural resource is located benefits immensely from this value, natural resources are considered national assets.


The ownership regime relating to natural resources can be ascertained from international conventions and customary law, common law and national constitutions. In international law it rests upon the concept of sovereignty and seeks to respect the principle of permanent sovereignty (of peoples and nations) over (their) natural resources as asserted in the 17th Session of the United Nations General Assembly and then affirmed as a customary international norm by the International Court of Justice in the case opposing the Democratic Republic of Congo to Uganda.


Principle 15 of Rio

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.


Vellore Citizen’s Welfare Forum v. Union of

India (1996) Environmental measures by the State Government and the

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 the

developer/industrialist to show that his action is

environmentally benign.


Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345 It appears to us that the precautionary principle and the

corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known.

When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution

Precautionary Principle On the other hand where the effect on ecology or

environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same

Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance

Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.


“In the present case we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well-known in India and, therefore, the decision in A.P. Pollution Control Boards case will have no application in the present case.”

Precautionary Principle Executive decision: Bt Brinjal

Polluter Pays Principle

Polluter pays principle

Cost of pollution should be born by the person causing pollution

Doubtful as to whether reached the status of a customary principle of international law

Principle 16 Rio

Compromise language


Rio Declaration Principle 16

National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.


PPP means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of 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

Vellore Citizens Welfare Forum v. Union of India, AIR 1996

SC 2715.

Indian Council for Enviro – Legal Action v. Union of India,

AIR 1996 SC 1446.


Brundtland Report (1987)

Four recurring themes (Philippe Sands)

The need to preserve natural resources for the benefit of future generations (the principle of inter-generational equity)

the aim of exploiting natural resources in a manner which is „sustainable‟, or „prudent‟, or „rational‟, or „wise‟, or „appropriate‟ (the principle of sustainable use);


the „equitable‟ use of natural resources , which implies that use by one state must take account of the needs of other states (the principle of equitable use, or intra-generational equity)

the need to ensure that environmental considerations are integrated into economic and other development plans, programmes and projects, and that development needs are taken into account in applying environmental objectives (the principle of integration)


Vellore Citizens Welfare Forum Vs.Union of India (1996) The traditional concept that development and ecology are

opposed to each other is no longer acceptable. "Sustainable Development is the answer…. During the two decades from Stockholm to Rio "sustainable Development" and came to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems…. We have no hesitation in holding that "Sustainable Development‟ as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient feature have yet to be finalised by the International Law Jurists.


Narmada Bachao Andolan Vs. Union Of India (2000) It is when the effect of the project is known

then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.


N.D. Jayal vs Union of India (2003) Therefore, the adherence of sustainable development principle

is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ‟sustainable development‟ cannot be singled out. Therefore, the concept of ’sustainable development’ is to be treated an integral part of ’life’ under Article 21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products, ), public trust doctrine (M.C. Mehta v. Kamal Nath , ) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.


G. Sundarrajan v. Union of India (2013)

We have already found on facts that the KKNPP has been set up and is made functional on the touchstone of sustainable development and its impact on ecology has been taken care of following all national and international environmental principles


12th Five Year Plan (2012 – 2017)

Faster, More Inclusive and Sustainable Growth

suggests that there are significant 'co-benefits' for climate action with inclusive and sustainable growth


Economic Survey

For the first time chapter on Sustainable Development and Climate Change (2011 -12)

Diesel subsidy: Diesel prices need a large adjustment now (as China, for example, has recently undertaken), given subsidies, pollution and public health costs. Charging high road and vehicle taxes is another option (that Singapore uses).

Sustainable Development Economic Survey

2012-13

Financing climate change adaptation and mitigation measures

Estimates that to meet the NAPCC objectives would require Rs. 230,000 crores

Government budgetary support

Carbon taxes: National Clean Energy Fund; cess on coal

Market mechanisms: Perform Achieve and Trade (PAT) and Renewable Purchase Obligation (RPO)

Legislative Developments

The National Green Tribunal Act, 2010

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.

Section 20

International Legal Regime on Forests

An Overview

1. Regional Law on Forests

pre-UNCHE

international law on

forests restricted to

regional agreements

approximately 15

agreements at regional

level can be identified

that directly relate to

forests

http://www.cleaneconomy.it/magazine/wp-content/uploads/2008/11/7081rain-forest-posters.jpg

Regional Agreements Relating to Forests

Convention Relative to the Preservation of Flora and Fauna in their Natural State (London, 1933)

Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Washington, 1940)

African Convention on the Conservation of Nature and Natural Resources (Algiers, 1968)

Convention on the Conservation of Nature in the South Pacific (Apia, 1976)

Treaty for Amazonian Cooperation (Brasilia, 1978)

Regional Agreements Relating to Forests Convention on the Conservation of European

Wildlife and Natural Habitats (Berne, 1979)

Benelux Convention n Nature Conservation and Landscape Protection (Brussels, 1982)

Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region (Nairobi, 1985)

ASEAN Agreement on the Conservation of Nature and Natural Resources (Kuala Lumpur, 1985)

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea, 1986)

Convention for the Conservation of the Biodiversity and the Protection of Priority Wilderness Areas in Central America (Managua, 1992)

Regional Agreements Relating to Forests

North American Agreement on Environmental Cooperation (Washington, 1993)

Regional Convention for the Management and Conservation of the Natural Forest Ecosystems and the Development of Forest Plantations (Guatemala City, 1993)

Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (1995)

Trends in Regional Forest Law

1. habitat: rationale for conserving forests is most early regional agreements is that they provide habitat; primary focus of conservation were species of flora/fauna, while forests got incidental protection by virtue of being habitat

2. protected area approach: early conventions operate by isolating forests from human interaction (unlike newer concepts of community forestry and social forestry)

3. most agreements explicitly reiterate exclusive sovereign right of each country to use natural resources within their territory

4. South Asian region no regional legal protective mechanism

2. Soft Law on Forests

Stockholm Declaration, 1972

World Charter for Nature, 1986

Rio Declaration, 1992

Agenda 21, 1992

Forest Principles, 1992

Programme for Further Implementation of Agenda 21, 1997

Johannesburg Declaration and Plan of Implementation, 2002

Non-legally Binding Instrument on All Types of Forests, 2007

Stockholm Declaration, 1972

2. Natural resources of the earth must be safeguarded for present and future generations through planning or management

4. Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat

21. States have in accordance with the UN Charter and the principles of international law, 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

World Charter for Nature, 1982

Resln. adopted by GA in 1982

“Every form of life warrants respect regardless of its worth to man”

2. habitats shall be safeguarded

11(d). Forestry practices shall be adapted to the natural characteristics and constraints of given areas

22. takes fully into account the sovereignty of States over their natural resources

Rio Declaration, 1992

2. States have, in accordance with the Charter of the United

Nations and the principles of international law, the sovereign

right to exploit their own resources pursuant to their

environmental and developmental policies, and the

responsibility to ensure that activities within their jurisdiction do

not cause damage to the environment of other states or of areas

beyond the limits of national jurisdiction

Agenda 21, 1992

comprehensive action plan adopted at UNCED

chapter 11 – Combating Deforestation

4 Programme Areas:

sustaining multiple roles and functions of forests

enhancing protection, sustainable management and conservation of forests

promoting efficient utilization of forest goods and services

establishing and/or strengthening capacities for the planning, assessment and systematic observations of forests

Forest Principles, 1992

Non-legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests

aims to relate subject of forests to entire range of environmental and developmental issues

calls for efforts to increase forest cover and productivity

Soft Law on Forests

unlike regional agreements, the soft law instruments are universally applicable

but they are not legally binding

although countries are reluctant to be bound by a legally binding convention, a broad agreement over basic underlying principles is evident in range of declarations, guidelines and principles adopted

3. Related Law on Forests

many global binding instruments relating to different issue areas have a bearing on forests

these are not specifically designed to address forests

but their goals and programmes have a direct bearing on forests

one reason for inability to negotiate an international instrument on forests is existence of so many forest-related instruments

Ramsar Convention on Wetlands, 1971

Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat

requires parties to promote conservation of listed wetlands and „wise use‟ of wetlands in general

no specific mention of forests

convention‟s definition of wetlands is broad enough to encompass certain forest ecosystems

mangrove forests (among most threatened of world‟s forest types) are situated in coastal wetlands

about a third of listed Ramsar sites (1886) are forests

India‟s Ramsar sites Keoladeo National Park (Rajasthan), Bhitarkanika Mangroves (Orissa)

World Heritage Convention, 1972

provides for protection of heritage of „outstanding universal value‟ from several points of view, including science, conservation and natural beauty

states and international community are required to cooperate to protect and conserve world heritage

World Heritage List: 981 sites [759 cultural; 193 natural; 29 mixed]

currently, more than 60 forests included on WHL

criteria for selecting sites include;

“the most important and significant natural habitats for in situ conservation of biodiversity”

“outstanding examples representing significant on-going ecological and biological processes in the evolution and development of terrestrial ecosystems and communities of plants and animals

India‟s natural sites Kaziranga, Keoladeo, Sunderbans, Nanda Devi and Valley of Flowers, Manas, Western Ghats

CITES, 1973

Convention on International Trade in Endangered Species of Wild Flora and Fauna

subjects international trade in selected species to licensing system for import, export, re-export etc.

covered species listed in three Appendices according to degree of protection needed

applies to plant (tree) and animal species

proposals to list endangered tree species (especially commercially harvested ones) are highly controversial

some tree species listed: Brazilian Rosewood (Appendix I); African teak, Red Sandalwood (Appendix II)

Timber Working Group; Mahogany Working Group

CITES offers significant institutional capacity for addressing trade and conservation concerns of managing impact of trade on forest species

UN Convention to Combat Desertification, 1994

aim curbing degradation of arid lands

establishes framework for national, sub-regional and regional programmes to counter degradation of drylands

commits Governments to a “bottom-up approach” that involves local populace, national authorities and international community

deforestation is a cause of desertification

http://www.unccd.int/publicinfo/photo/awards/showPhoto.php?src=l1

Forests and Climate Change

climate change and forests are intrinsically linked

changes in global climate are stressing forests higher mean annual temperatures, altered precipitation patterns and extreme weather events

CO2 biggest contributor to GHGs

trees sequester atmospheric carbon, serving as natural carbon sinks

natural forests can lower a country‟s net emissions

in the tropics, forests can store as much as 15 tonnes of carbon per hectare per year

afforestation and reforestation are acknowledged strategies for combating climate change

according to IPCC, reducing/preventing deforestation is the mitigation option with largest and most immediate carbon stock impact in short term

on the flip side, when destroyed or burned, forests become sources of CO2

UNFCCC, 1992

Kyoto Protocol mandates reduction of „net emissions‟ of GHGs

concerns that „reforestation‟ or „afforestation‟ could lead to planting of homogenous tracts in lieu of old-growth forests

concerns about sovereignty implications of allowing outside investors to finance/control management of domestic forests under Kyoto mechanisms

GEF decided to not fund forestry projects under climate window

LULUCF: Land Use, Land Use Change and Forestry these activities can add or remove carbon from atmosphere

IPCC two major reports on LULUCF

rules governing LULUCF for Kyoto period finalized in 2001

mandatory for Annex I parties to account for changes in carbon stock from afforestation, reforestation and deforestation and voluntary to account for emissions from forest management

Good Practice Guidance for LULUCF adopted by IPCC in 2003

2009 identify and address drivers of deforestation; identify activities to reduce emissions and increase removals and stabilize forest carbon stocks; estimate forest-related GHG emissions and removals and forest carbon stocks; establish robust and transparent national forest monitoring systems

Convention on Biological Diversity, 1992

global treaty with most significant potential effect on conservation and sustainable use of forest resources

conservation of forests is crucial to objectives of CBD

forests are both a component of and a habitat for terrestrial biodiversity

specific action relating to forest biodiversity undertaken at CBD:

inputs to IPF/IFF/UNFF processes

specific work programme on forest biodiversity

guidance to GEF to fund forest projects

implementation of Article 8(j) on traditional forest related knowledge (TFRK)

ILO Conventions, 1957 &1989

many natural forests inhabited by indigenous peoples

they depend on forests for many aspects of their livelihood and culture

they also often employ traditional management systems

ILO Convention Nos. 107 & 169

Convention 107 adopted in 1957; superseded by 169 in 1989

Article 7 indigenous and tribal people shall have the right to decide their own priorities for the process of development and that governments shall take measures …to protect and preserve the environment of the territories they inhabit

Article 14 recognizes right of ownership and possession of the peoples concerned over lands which they traditionally occupy

Article 15 rights of peoples concerned to natural resources pertaining to their lands shall be specially safeguarded, including right to use, manage and conserve these resources

ILO Convention 169 has potential to strengthen human rights dimension of international framework of forests

International Tropical Timber Organization

ITTA adopted in 1983; renegotiated in 1994 & 2006

primarily a commodity agreement between producer and consumer countries

established ITTO in 1986

India is an ITTO „producing member‟

ITTO‟s paradox recognition that tropical timber trade is key to economic development in its member states as well as concern for alarming rate of deforestation

ITTO has adopted non-binding goals of sustainable forestry and developed guidelines

tensions between consumer and producer countries should sustainability requirements be binding?

objective of 2006 Agreement (Article 1) to promote expansion of international trade in tropical timber from sustainably managed … forests…”

India

India has played an active role in the international forest law matrix

India has no regional legal obligations in relation to forests, although this action in this direction is worth consideration

“SAARC Convention on Forests”?

India is an active participant and even a key player in several forest-related agreements (eg. UNFCCC)

“India is committed to the Forest Principles evolved at UNCED and implementation of Chapter XI of Agenda 21. India has fully supported and actively participated in the IPF, IFF and now in UNFF.” (Statement by Mr T.R. Baalu, Minister E&F, 14 March 2002)

Thank You!

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An Introduction to International Law - TERI School of ... cases are brought before the ... disputes relating to or connected with facts or situations of hostilities, armed ... An Introduction