Abstract

The author aims to provide in this paper an overview of the areas of law at the international level, namely public international law (including a fresh look at the reception of international law in India), international energy law, and international environmental law that may apply to cases involving the sector of energy where issues concerning transboundary environmental harms are raised. Understanding these areas of law and being aware of these legal issues may be quite relevant in India.

Introduction

It is trite to say that clean air and water matter to everyone, especially when “climate change is undeniable” [1], which also affects air quality [2]. India protects, at least from a legal standpoint, the quality of the air and water by giving them both constitutional protections. In the case of Subhash Kumar v. the State of Bihar, the Supreme Court of India declared that Article 21 of the Constitution of India “includes the right of enjoyment of pollution-free water and air for full enjoyment of life.” [3] Ironically but sadly, the Indo-Gangetic Plain is one of the most highly polluted regions in the world. [4] In India, the issue of polluted air is also international by nature since India and Pakistan blame each other for degraded air quality in certain bordering regions, mostly because of smoke coming from agricultural residue burning. [5] Some authors also claim that air pollution is increasingly recognized as a transboundary environmental hazard. [6] This should come as no surprise since “pollution and environmental threats frequently take a transboundary dimension”. [7] Transboundary environmental harm is defined as “firstly, the harm must result from human activity…Secondly, the harm must be a physical consequence of the human activity…Thirdly, there must be a physical effect crossing national boundaries…The fourth condition is that the harm in question must exceed a certain level of severity that calls for legal action.” [8]

As for water, not only does it represent life on Earth [9], but it also creates energy. This is illustrated by the current construction in India of the hydroelectric project Pakal Dul. This project is covered under the Indus Waters Treaty (IWT) with Pakistan. [10] Article III (2) of the IWT guarantees India the right to “non-consumptive” use of water. This use could be, as for the project Pakal Dul, for hydroelectric power generation. However, this project led to “growing tensions between the two nations” and “such disagreements over hydroelectric projects … have continued over the past several decades.” [11] For instance, such tensions led to “the latest arbitration in the field of international water law” [12], the Kishenganga arbitration case decided in 2013, which was the “second arbitration specifically dealing with transboundary waters.” [13] The Kishenganga River (called the Neelum in Pakistan-administered Kashmir) originates in India-administered Jammu and Kashmir and crosses the line of control separating the portions of Kashmir administered by the two countries. As Tignino and Bréthaut recalled, “[t]his case concerned the application and interpretation of the 1960 Indus Waters Treaty and, specifically, the effects of a hydroelectric project carried out by India on the waters owing to Pakistan.” [14] The Kishenganga arbitration case, as well as the tensions and disagreements that existed between India and Pakistan over the past several decades about the development of hydroelectric projects, show that the legal issues related to energy and the protection of the environment at an international level are key for India. Therefore, the author suggests in this paper a short review of the basic foundations of international energy law, which calls, in turn, to first cover the same in public international law. The issue of transboundary environmental harms in the context of international environmental law will also be covered. All these areas of law are, to a certain extent, interrelated [15], and they certainly are essential to grasp and understand some of the legal issues that are relevant in the field of energy law in India. They are even more relevant in the context where “India is a growing economy facing the critical challenge of meeting a rapidly increasing demand for energy” [16], and when some even claim that “there is no doubt that energy is a huge problem for India.” [17]

Public International Law

The traditional approach consisting of legal regulation of energy issues as a matter of domestic, rather than public international law has changed, and international law now matters, too. [18] Interestingly, Stuart argued that “public international law can provide answers to many of the pressing questions in [the] field [of energy] in a way that domestic law cannot.” [19]

As Barjaktarevic and Markovic pointed out, “[t]he point of contact of international public law and energy law is the cases when the state acts as a subject of legal relations in the field of energy (when the state acts as a guarantor of enforcement intergovernmental agreements of business entities).” [20] For India, the interaction between energy law and public international law may be illustrated, for example, by “the exploration of overseas oilfields, particularly in the area of South China Sea could bring India in direct competition with fellow Asian countries like China and Malaysia.” [21] The state of India would not explore these overseas oilfields by itself, but with the assistance of private entities. This competition between these countries, including India, could eventually raise issues that would bring the relevancy of public international law to the fore for India. Think, for example, of the South China Sea Arbitration of 2016 [22] that concerned China’s historic rights claims over maritime areas, and that opposed the Philippines to China, but that also involved Taiwan and Vietnam; to be clear, those countries all share maritime borders [23] with China, but India does not. While the International Court of Justice (“ICJ”) is the principal judicial organ of the United Nations, “most disputes [between countries] involving energy matters are diverted to other adjudicative fora such as arbitration because non-State actors lack standing in international courts”. [24] Similarly, for legal issues involving international environmental law, “there are no specialized courts…but issues of environmental protection and conservation of natural resources are dealt with by several international adjudicating bodies, such as the International Tribunal for the Law of the Sea, the WTO Dispute Settlement Understanding, the Permanent Court of Arbitration and the ICJ.” [25] Therefore, the issue of the right forum and jurisdiction at the international level should be first carefully looked at when a state considers filing proceedings either for energy law and/or international environmental law. 

Even though this paper does not aim to address the issue of the reception of international law at the national level in India, it remains important to recall that India officially follows the dualist theory [26], which “perceives national and international law as separate” [27], i.e. “the rules of international law are not considered as part of municipal law except in so far as they have already been adopted and made part of municipal law by acts of Parliament.” [28] It is also interesting to note that “Indian courts have generally been positive in their response to developments in public international law” [29], but, as the Supreme Court of India stated in Gramophone Co. of India Ltd. v. B.B. Pandey, “national courts [in India] cannot say yes if Parliament has said no to a principle of international law.” [30] Similar, if not identical, conclusions were reached in at least three additional decisions of the apex court [31], and the dualist theory is still considered to apply nowadays in India. [32] More specifically concerning the field of energy, it must be noted that “[t]he interaction between national and international legal instruments…is closely connected to the structure and scope of the energy industry and its governance structures.” [33] Besides, “the key source of energy law and policy is national governments.” [34]

First, because India follows a dualist theory for the implementation of international rules into its domestic law; and second, because national governments play a central role regarding the decisions to be made for the adoption of policies, the significance of international law in India when it comes to the consideration of energy law issues should not be considered in a vacuum. However, we would be remiss to not mention that, surprisingly, “Indian courts have relied upon the emerging norms and principles of international environmental law as forming part of Indian law” [35] without requiring the Parliament to adopt such norms and principles in the first place. Consequently, it would now be more accurate to say, contrary to what had been stated by the Supreme Court of India in Gramophone Co. of India Ltd. v. B.B. Pandey, that national courts in India may say ‘yes’ even if Parliament has said ‘no’ to a principle of international law. This shows the permeability between international and domestic law in India regarding certain international law norms and principles. This state of fact would also, in turn, challenge the doxa that the dualist theory applies strictly in India. This may also further contribute to the discussion on the controversies opposing the monist and dualist theories, but this specific topic would go beyond the scope of this paper. [36] Let us just add here that several of the norms and principles in international environmental law stem from customary international law, including the duty not to cause transboundary environmental harms. [37] Therefore, perhaps India would now have, like Canada – India’s ‘long lost sibling’ [38] – does [39], a hybrid approach to the reception of international law.

International Energy Law

Not so long ago, energy law was still considered a new area of law [40], but “energy law and policy [now] plays a vital role in the energy sector in the 21st century.” [41] In his seminal and oft-cited piece Energy Law as an Academic Discipline, Bradbrook defines energy law as “the allocation of rights and duties concerning the exploitation of all energy resources between individuals, between individuals and the government, between governments and between States.” [42] It is considered a branch of public administrative law. [43] It is the dimension of energy law between governments and between States that is the focus of our attention here, more precisely when it may affect or have an impact on India.

Stuart defines summarily the objective of international energy law as “to locate, synthesize and apply public international law within the context of energy.” [44] It is “inherently multidisciplinary and multidimensional”. [45] This defeats, to a certain extent, the disappointing statement of Mukherji who opined that “the lack of energy treaties to which India is a party, reflects a much wider paucity of international law on energy”. [46] It does defeat it, mostly because “international energy law is not contained in a single international instrument nor forms the subject-matter of a specific international legal regime. Its rules and principles are dispersed over many different areas of international law” [47], then this alleged paucity may not exist when one examines these rules and principles where energy issues may be addressed here and there in various international legal instruments rather than in a unified corpus. The author of this paper is also comforted in this view by the importance given to international energy law by Heffron, who wrote: “International energy law has a major influence on national energy law”. [48] Heffron also contextualized the interactions between international and national energy law when he suggested: “it is necessary to always place the national energy law of one country in the context of both international energy law and the national energy law of one or more other countries.” [49] As stated above, international law should not be placed in a vacuum, and neither should national laws.

International Environmental Law

In many cases, energy law goes hand in hand with the “rules regarding the protection of the environment”. [50] Barjaktarevic and Markovic observed that the “relationship between energy law and environmental law is realized through the influence that energy, as a global pollutant, is achieving by the activity or inactivity of energy entities in the whole environment.” [51] In more general terms, “both energy law and environmental law share the characteristic of aiming to change behaviour.” [52] Articles 21, 48A, 51A(g) of the Constitution of India provide for rights regarding the protection of the environment. However, contrary to Article 32 that gives Indian citizens the right to seek remedies when, for example, the pollution of water or air may be detrimental to their quality of life, individuals are non-state actors in international law, and they only “possess some degree of limited legal personality in international law.” [53] The role and position of non-state actors in international law is “the subject of a long-standing and intensive scholarly debate” [54] that goes well beyond the scope of this paper, but this distinction between international and national law is important enough to not leave it unnoticed.

The arbitral decision in the Trail Smelter case decided in 1941 that opposed Canada to the United States is considered to have laid the foundations of international environmental law, and is by far the “most influential decision on transboundary pollution in international law.” [55] It stated that “no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” [56] This decision set out the principle of customary international law providing that states must prevent transboundary harms. [57] This duty was confirmed by the ICJ to be a duty under general international law [58], but “the precise scope of the legal duty to prevent transboundary pollution is not clear.” [59] Even though India was a party to the Kishenganga arbitration case, and that there is currently the construction of the hydroelectric project Pakal Dul in India, the Trail Smelter case involved transboundary air pollution. As opined by Tignino and Bréthaut, “it is less known that [the Trail Smelter case] also concerned transboundary harm caused by uses of water resources” [60] should it be eventually alleged that the Pakal Dul project caused any environmental transboundary harm to Pakistan. If such an allegation would be raised, the parties may then need to resort to more than the Trail Smelter case in their potential arguments, however being “less known” does not necessarily mean that the principles set out in this latter case would not apply more broadly, and then they may also apply to cases involving water resources. For instance, the Lake Lanoux [61] case that opposed France to Spain is the first arbitral decision that focused on transboundary waters, however, it was not “linked to any environmental concerns.” [62] That being said, the Pulp Mills [63] case decided by the ICJ still pointed out that there is an obligation of due diligence requiring that it is every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states. This general obligation could still provide possible legal grounds for a state wanting to raise issues related to potential environmental transboundary harms caused to its waters by another state.

Conclusion

Outka argued that “COVID-19 has already resulted in disruptions affecting the pace of solar energy development” [64], then it may not be frivolous to raise similar concerns as to the possible impacts of COVID-19 on the development of other types of energy-related projects such as hydroelectric projects. In that context, the author aimed to provide in this paper an overview of the areas of law at the international level that may apply to cases that involve the sector of energy where issues concerning transboundary environmental harms are raised. Understanding these areas of law and being aware of these legal issues may be quite relevant in India.

About the Author

Sébastien Lafrance, B.Sc., LL.B., LL.M. (Candidate), Crown Counsel (Prosecutor) for the Public Prosecution Service of Canada & International Legal Scholar. The views, opinions, and conclusions expressed herein are personal to this author and should not be construed as those of the Public Prosecution Service of Canada or the Canadian federal Crown.

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Preferred Method of Citation 

Sébastien Lafrance, “India, International Energy Law and Transboundary Environmental Harms” (IJPIEL, 5 April 2021)

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Endnotes

[1] Daniel Ling Tien Chong, “Climate Change and the Role of Emerging Economies”, (2020) 50(2) Envtl L Rep 10125, 10125.

[2] See, e.g., Daniel J. Jacob and Darrell A. Winner, “Effect of climate change on air quality”, (2009) 43 Atmospheric Environment 51-63.

[3] Subhash Kumar vs State of Bihar, 1991 AIR 420 (India).

[4] Michelle E. Miro, Miriam Elizabeth Marlier, Richard S. Girven, Transboundary Environmental Stressors on India‑Pakistan Relations – An Analysis of Shared Air and Water Resources, Rand Corporation, 2019, 3.

[5] Id.

[6] Id, 21.

[7] Marte Jervan, “The Prohibition of Transboundary Environmental Harm. An Analysis of the Contribution of the International Court of Justice to the Development of the No-Harm Rule”, PluriCourts Research Paper No. 14-17, 2014, 2.

[8] Id, 4-5.

[9] See, e.g., V. Rajamani, “Biological management of water on land”, (2005) 89 Current Science 5, at 850-852.

[10] See, e.g., Tribune News Service, “Pakal Dul tunnel project cost not inflated, says company”, The Tribune, Jammu, February 24, 2021.

[11] Miro, Marlier and Girven, supra note 4, 5.

[12] Mara Tignino & Christian Bréthaut, “The Role of international case law in implementing the obligation not to cause significant harm”, (2020) Int Environ Agreements 20:631-648, 640-641.

[13] Id.

[14] Id.

[15] Dragana Barjaktarevic & Liljana Markovic, “Relationship between Environmental Law and Energy Law” (2019) 9 Int’l J Econ & L 9, 11.

[16] G. N. Sinha, “India and International Energy Law” in Bimal N. Patel (ed), India and International Law, volume 2, Martinus Nijhoff Publishers, Leiden/Boston, 2008, 170.

[17] Krishnendu Mukherji, “Climate Change, Energy Law and India” in Bimal N. Patel (ed), India and International Law, volume 2, Martinus Nijhoff Publishers, Leiden/Boston, 2008, 190.

[18] Rosemary Lyster and Adrian Bradbrook, “Energy, International Environment Law and Sustainable Development” in Energy Law and Environment, Cambridge University Press, 2006, 34-35; see also more recently Md Ershadul Karim, Abu Bakar Munir, Mohammad Ataul Karim, Firdaus Muhammad-Sukki, Siti Hawa Abu-Bakar, Nazmi Sellami, Nurul Aini Bani and Mohamad Zaki Hassan, “Energy Revolution for Our Common Future: An Evaluation of the Emerging International Renewable Energy Law”, Energies, MPDI, 2019, 6.

[19] Bruce Stuart, ‘International Energy Law’ in the Max Planck Encyclopedias of International Law, Oxford University Press, 2014, at para. 1.

[20] Barjaktarevic & Markovic, supra note 15, 11.

[21] G. N. Sinha, supra note 16, 171.

[22] South China Sea Arbitration, Philippines v. China, Award, PCA Case No 2013-19 (Permanent Court of Arbitration).

[23] Maritime borders are the maritime boundary recognized by the United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, i.e. territorial waters, contiguous zones, and exclusive economic zones. India is a signatory to the UNCLOS.

[24] Bruce Stuart, supra note 19, at para. 15.

[25] Marte Jervan, supra note 8, 9.

[26] See, e.g., Suniti Kaur, Shauray Bal and Kunal Lohani, ‘India’ in Bob Palmer (ed.), Oil Regulation 2020, 7th edition, Law Business Research, 2020, 74.

[27] Stephan W. Schill, “The interface between national and international energy law” in Talus, Kim (ed), Research Handbook on International Energy Law, Edward Elgar Publishing, 2014, 51.

[28] Amal K. Ganguli, “Interface between International Law and Municipal Law: A Role of the Indian Judiciary” in Bimal N. Patel (ed), India and International Law, volume 2, Martinus Nijhoff Publishers, Leiden/Boston, 2008, 13.

[29] Id, 25.

[30] AIR 1984 SC 667 (India).

[31] Shiv Kumar Sharma v. UOI, AIR 1968 Del 64 (India); Maganbhai v. UOI, AIR 1969 SC 783 (India); Verghese v. Bank of Cochin, AIR 1980 SC 470 (India).

[32] See, e.g., Suniti Kaur, Shauray Bal and Kunal Lohani, ‘India’ in Bob Palmer (ed.), Oil Regulation 2020, 7th edition, Law Business Research, 2020, 74.

[33] Schill, supra note 27, 47.

[34] Raphael J Heffron and Kim Talus, “The development of energy law in the 21st century: a paradigm shift?”, (2016) Journal of World Energy Law and Business, 2016, 6.

[35] Ganguli, supra note 28, 36; see Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647 (India).

[36] See, e.g., A.F.M. Maniruzzaman, “State Contracts in Contemporary International Law: Monist versus Dualist Controversies”, (2001) 12 European Journal of International Law 2.

[37] Gabčíkovo-Nagymaros Project (Hungary/Slovakia), (1997) ICJ Rep 7; see also Lyster and Bradbrook, supra note 28, 38.

[38] Sébastien Lafrance, ‘Should Canadian Law Matter to Indian Jurists? Advocating for More Substantial Legal Discussion Between the Long-Lost Siblings’ (The Contemporary Law forum, 8 July 2020) <http://tclf.in/2020/07/08/should-canadian-law-matter-to-indian-jurists?-advocating-for-more-substantial-legal-discussion-between-the- ‘long-lost-siblings’>.

[39] See, e.g., Gib van Ert, “Dubious Dualism: The Reception of International Law in Canada”, (2010) 44 Valparaiso University Law Review 3, 928.

[40] Raphael J. Heffron, Energy Law: An Introduction, Springer, 2015, 1.

[41] Raphael J Heffron and Kim Talus, “The development of energy law in the 21st century: a paradigm shift?”, (2016) Journal of World Energy Law and Business, 2016, 0, 1–14, 1.

[42] Adrian Bradbrook, “Energy Law as an Academic Discipline”, (1996) 14(2) J Energy & Nat Resources L 193, 194.

[43] G. N. Sinha, supra note 16, at 162 and 186.

[44] Stuart, supra note 19, at para. 1.

[45] Id, at para. 2.

[46] Krishnendu Mukherji, “Climate Change, Energy Law and India” in Bimal N. Patel (ed), India and International Law, volume 2, Martinus Nijhoff Publishers, Leiden/Boston, 2008, 190.

[47] Schill, supra note 27, 50.

[48] Id, 20.

[49] Id.

[50] Id, 49.

[51] Barjaktarevic & Markovic, supra note 15, 21 (italics added); see also Sinha, supra note 16, 162.

[52] Schill, supra note 27, 42.

[53] Agata Kleczkowska, States vs. non-state actors – a public international law perspective, Strategic Analysis / 20, Hybrid CoE, 2020, 4.

[54] See, e.g., Math Noortmann, August Reinisch, Cedric Ryngaert (eds), Non-State Actors in International Law, Hart Publishing, 2015, abstract.

[55] Thomas W. Merrill, “Golden Rules for Transboundary Pollution”, (1997) 46 Duke L.J. 931, 947.

[56] Trail Smelter Arbitral Decision (US v. Can.) (1941) 35 Am. J. Int’l Law 684, 716.

[57] Lyster and Bradbrook, supra note 55, 38; see also Iron Rhine Arbitration (Belgium/Netherlands), ICGJ 373 (PCA 2005) (Permanent Court of Arbitration).

[58] Gabčíkovo-Nagymaros Project (Hungary/Slovakia), supra note 35.

[59] Lyster and Bradbrook, supra note 55, 39.

[60] Tignino & Bréthaut, supra note 12, 634.

[61] (France v. Spain), (1957) 12 R.I.A.A. 281.

[62] Id, 636.

[63] Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, para. 204; see also Corfu Channel (United Kingdom v. Albania), I.C.J. Reports 1949, 22.

[64] Uma Outka, “Accelerating Energy Transition in India: A Comparative Perspective” (2020) 50(6) Envtl L Rep 10459.