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Introduction

Environment includes land, air, water, plants, animals, human beings, microorganism and
everything that surrounds it, hence environmental law broadly should mean the law that regulates
almost every action on this planet. However the scope, development and application of
environmental law suggest that environmental law is the law that regulates human actions which
have an impact on natural environment and natural resources. The range of activities regulated
by environmental law include the activities of major enterprises to common mans everyday
activity. Environmental law has unique characteristics and the scope of environmental law is also
growing exponentially since 1970 across nations. Degradation of environment across the world
and the adverse impact of it on life and its support system led to the growth of environmental
law.
The United Nations Conference on Human Environment (UNCHE), popularly known as
Stockholm Conference, held from 5 th to 16th June 1972 at Stockholm is considered to be the
first major effort to draw the attention of the Nations to preserve and protect the earth. The
conference is influenced by the report published by the Club of Rome titled Limits to Growth.
Club of Rome is a group of educated people from various nations who formed the group in 1968
at the instance of an Italian industrialist, Aurelio Peccei. The group entered into an agreement
with MIT (Massachusetts Institute of Technology) in 1970 to apply Systems Dynamics and
analyze the impact of resource availability and development potential. The research consisted of
17 people from various Nations and the report was submitted by Dennis Meadows to the Club of
Rome. The report anticipates growth rate and forecasts the emerging challenge in view of the
resource constraint which may arise due to severe stress imposed on resources due to
development. The Limits to Growth anticipated a sudden fall in development due to lack of
resources which may arise in next fifty years. The report is criticized of being extremely
hypothetical and without substantive stand as we already crossed thirty five years since then and
nothing as projected by the report has occurred. The other criticism goes to the extent of saying
that it is a conspiracy of certain trade groups to ensure their monopoly over capital markets.

However the report had its influence in evoking nations towards the need for environment
protection.
The Stockholm Conference is the result of United Nations General Assembly Resolution
following the Economic and Social Council recommendation to have a conference on
environment. The conference preparatory process involved inviting reports on status of
environment and aspects concerning environment from government and non government
organizations across States. The conference laid foundation for evolving international policy on
environment and debated at great length to have intergovernmental organizations and an
environment fund which finally led to the establishment of United Nations Environment Program
(UNEP). UNEP has its head quarters at Nairobi, Kenya as it was intended to have it in the
developing nation. There is a constant demand from few nations that UNEP be empowered and
converted to a full fledged United Nations organization as UNEO (United Nations Environment
Organization). The Stockholm Conference motto was only one earth. The conference is said by
few to be a victim of its own success as it inspired and led to the establishment of more than one
lakh Non Governmental and Inter Governmental Organizations and evolving of more than 200
Conventions pertaining to environment. UNEP did not live up to the expectations is also one of
the major criticisms of the environmentalists.
Stockholm Conference resulted in a declaration consisting of 26 principles accepted and adopted
by the States. Though the declaration is not formally binding the principles laid down in this
declaration have been the guiding source of law in many countries. The Indian Supreme Court
also relied upon some of these principles while decision making in matters pertaining to
environment protection. The principles lays down the conviction of the States for protecting
resources of the earth including air, water, land, flora, fauna etc. so as to ensure their availability
for the benefit of future generations. The principles lay down emphasis for sustainable use of non
renewable resources. They emphasize planning and rational management of resources. The
principles enunciate that the member States National policies and institutions have to adopt
measures to protect the environment. The principles 21 and 22 laid foundation for law relating to
liability for environmental damage.
Principle 21

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 22
States shall cooperate to develop further the international law regarding liability and compensation for the victims of
pollution and other environmental damage caused by activities within the jurisdiction or control of such States to
areas beyond their jurisdiction.

The foundation for the above principles could be said to be laid down by the arbitration award in
Trail Smelter case. In the Trail Smelter Case, the award made in 1941, liability for the damage
caused beyond national boundaries has been accepted. Smelting operations carried in Canada
damaged the crop in United States. United States farmers demanded compensation through its
Secretary of State from the Canadian Government for the damage done to them. Canadian
Government was asked to pay 350000 U.S. Dollars as compensation for all the damage done to
the United States until 1932 and the future damage had to reviewed and decided subsequently.
This case laid foundation for accepting liability for the environmental harm caused beyond
boundaries which was finally accepted and adopted as a principle in Stockholm declaration.
Besides these principles Stockholm conference led to the enactment of various legislations
concerning environment protection across nations.
The conference could be said to have achieved the purpose of arousing environment
consciousness and initiating measures for environment protection among the member States.
Developing countries raised the concern of poverty, illiteracy, unemployment and other pressing
problems plaguing them and they stated that it may not possible for them to take drastic
measures for environment protection as their other demands are to be attended immediately.
However it is proclaimed by the conference that man is both a creature and molder of
environment, hence environment protection is important for human sustenance itself. Problems
such as poverty etc. shall be secondary as compared to sustenance of life therefore environment
protection need to be addressed alongside poverty and other problems as one problem cannot be
said to be more important than the other.
Stockholm Conference in essence laid the foundation for Sustainable Development. The term
Sustainable Development is used by IUCN (International Union for Conservation of Nature) in
1981 but impetus to this is given in the Brundtland Report in 1987. UNEP constituted an
independent body the World Commission on Environment and Development headed by
GroHarlem Brundtland, the then Prime Minister of Norway, to study the aspects of sustainable
development and the impact of Stockholm Conference. The Commission published its report

titled Our Common Future popularly known as Brundtland Report. This Report defined
Sustainable Development as the development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs. The definition
specially focuses on integrating economics and ecology at all levels. Sustainable Development is
defined in terms of intergeneration equity.
Brundtland Report has influenced the United Nations Conference on Environment and
Development (UNCED), also known as Earth Summit, held at Rio de Janeiro from 3 rd to 14 th
June 1992. This Conference resulted in Rio Declaration, Agenda 21 an action plan for
implementation, United Nations Convention on Biological Diversity, United Nations Framework
Convention on Climate Change and Forest Principles. Though the Stockholm and Rio
declaration are soft law instruments and are not binding the nations, the principles evolved have
been part of policies and legislation in most countries. The two binding conventions that came
into force at the Rio Conference are the United Nations Convention on Biological Diversity and
the United Nations Framework Convention on Climate Change.
Rio Declaration reaffirmed the Stockholm and proclaimed to build over it. Rio declaration laid
foundation for many treaties as nation States have accepted the controversial negotiations.
Developing and under developed nations have consistently raised the concern for investing in
environment protection as they were not the perpetrators of environment degradation. Their
contention was voiced at every forum from Stockholm on wards which could have become a
stumbling block but has been resolved with the acceptance of common but differentiated
responsibility.
Principle 7 of the Rio declaration states that:
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the
Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common
but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the
international pursuit to sustainable development in view of the pressures their societies place on the global
environment and of the technologies and financial resources they command.

The acceptance of the common but differentiated responsibility principle laid foundation for the
States to adopt the Convention on Biological diversity and the Convention on Climate Change.
Rio declaration was influenced by sustainable development hence the declaration laid
precautionary principle, impact assessment and polluter pay principle which have become

accepted norms in many States. Principle 15 of the declaration lays precautionary principle,
while principle 16 states the polluter pay principle and principle 17 emphasizes the impact
assessment procedure.
Principle 15
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.
Principle 16
National authorities should endeavour 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.
Principle 17
Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are
likely to have a significant adverse impact on the environment and are subject to a decision of a competent national
authority.

The Declaration also laid foundation for disaster management, protection of indigenous Peoples
rights and environment dispute settlement.
The next conference was held after five years in 1997 with the representatives of government
agencies popularly known as Earth Summit + 5 considered the implementation of Rio outcome
and upheld the Rio Declaration. The next United Nations Conference was held in 2002 at
Johannesburg as is decided at Rio Conference to have a conference after 10 years. This
Conference is known as the World Summit on Sustainable Development (WSSD). More than
45,000 people participated in this conference with representatives form Government, Non
Government Organizations besides others. The Conference is influenced by the works of
Amartya sen, Millenium Development Goals and Globalization besides others. The situation in
1992 is not the same in 2002.

Globalization and trade liberalization had its impact on World

Summit especially the work of Amartya sen which asserted that economic growth does not
necessarily mean social growth and that development may not necessarily trickle down. The
consensus was arrived at the Conference on the fact that for the development to be sustainable it
has to be equitable. Hence poverty eradication, illiteracy, health and social justice broadly
speaking are essential components of Sustainable Development. Hence economic growth,
environment protection and social justice are stated to be the three pillars of sustainable
development each reinforce the other. This Conference resulted in a Declaration and Joint Plan of
Implementation containing an introduction and ten chapters starting with poverty eradication as
the first chapter. This is how the Johannesburg Conference (WSSD) has changed the concept of
Sustainable Development form ecological and economic integration to the integration of

ecological, environment and social justice. This has an impact on conservation strategies and
policies at all levels among Nations.
Convention on Biological Diversity (CBD):
The Convention is an out come of the Rio Conference (United Nations Conference on
Environment and Development, 1992 held at Rio de Janeiro). UNEP constituted an Inter
Governmental Negotiating Committee (INC) in 1988 to look into the aspects of conservation of
biological diversity and the threat associated with it. There were expert committees constituted to
study economic aspects, conservation aspects etc. to assist the preparation of draft convention.
INC prepared the draft and placed it for approval at the Rio Conference. The contracting parties
adopted the Convention, with the requisite number of signatories the Convention came into force
in December 1993. More and more Nations became signatories to this Convention in due course
of time.
The Convention broadly aims to achieve the following:
1.

Conservation of biological diversity

2.

Sustainable use of biological resources

3.

Equitable sharing of benefits.

Conservation of Biological Diversity:


Biological diversity is defined in Article 2 of the Convention:
Biological diversity means the variability among living organisms from all sources including, inter alia, terrestrial,
marine and other aquatic ecosystems and the ecological complexes of which they are part, this includes diversity
within species, between species and of ecosystems.

Diversity within species can be stated as genetic diversity like various varieties within rice,
between species diversity means rice, paddy maize etc. whereas diversity of ecosystems would
mean diversity such as farmlands, deserts, forests, beaches etc. Earth is described by many as a
complex web and to pull any thing is to pull the entire structure hence the existence of diversity
is essential for the survival of life. The fact that species are becoming extinct at an alarming rate
is the major reason to consider conservation of the diversity not only for human survival but for

the survival of the species themselves. As no specie could take away the rights of others and no
human intelligence would create the specie, it is not justified that it be used for its extinction.
Mono culture in agriculture has become the most common practice threatening the diversity.
High yielding varieties and hybrid varieties have brought down the diversity leading to
monoculture resulting in more species being fed on fewer varieties.
It is not only important to conserve the specific components of biological diversity but it is
important to protect the ecosystem as such which supports these components. The convention
also specially emphasizes on species which are endemic to particular ecosystem as they are more
vulnerable. Species which are non endemic and are introduced into a particular ecosystem from
else where may at times pose threat to endemic species which need to be monitored. Ecosystem
conservation also includes conservation of abiotic components which are part of the ecosystem
for example when a forest eco system is conserved the stones, hills and similar other abiotic
components also are protected.
The Convention states that States have sovereign rights over the biological resources in their
territory, identifying and monitoring them would be an essential task of the States. Conservation
of biodiversity presupposes the knowledge of the existence of the components of biodiversity.
However the identification, reporting and monitoring of the species is a huge task. It requires
enormous man power, expertise and economic investment to identify and record the existing
species. A rough estimate states that there are thousands of varieties of insects exist where as
scientists could name only a few them. In such a scenario identifying the known species may be
done with great difficulty and identifying the unknown may still be not possible. Moreover
nation State has the authority to exploit its own resources.
Article 3 of the Convention on Biological Diversity states that:
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.

Considering the fact that species are best protected in their natural habitats, in situ form of
conservation is preferred. Where there is no such possibility even ex situ form of conservation

should be preferred, as far as possible, in the country of origin. Article 8 and 9 of the Convention
specifies In-situ and Ex-situ forms of conservation. In situ form of conservation can be managed
by developing, regulating and maintaining Protected Areas, preventing, eradicating or controlling
the entry of alien species, protecting, practicing and respecting innovations of indigenous
knowledge etc. Ex situ form of conservation would ensure protecting components of biological
resources by providing financial resources to set up institutions for such conservation etc. In situ
form of conservation revolves around the concept of protecting of protecting the habitat or the
entire ecosystem in its pristine state so as to ensure the survival of life of plants, animals,
microorganism in their surrounding while ex situ form of conservation speaks of conservation of
components of bio diversity with suitable alternatives. Article 7 of the Convention states that
identifying and monitoring components of biological diversity should be done in accordance
with the indicative list of diversity i.e. ecosystem, species and genetic diversity. Identifying is a
major task it is estimated that there are around 50,000 varieties within insects and with regard to
bacteria we have no clue. Hence the major task of the States would be identification. Hence the
whole conservation we speak about revolves around the conservative estimate and knowledge we
possess of the existing species.
Sustainable use of biological resources:
Developing countries are rich in biological resources where as developed countries possess
advance technology. Developed countries need access to the biological resources for their
research and development. Developing countries are not interested in providing such an access as
this would defeat their future opportunity of invention and also that the developed country would
patent its invention and sell it back to the country at very high costs which will be detrimental to
developing country. Hence there were conflicting interests in negotiations on providing access.
The contracting parties finally agreed that access to biological resources would be provided upon
equitable sharing of benefits between the country providing biological resource and country
which developed it. The country providing access would also ensure that access will not
adversely impact the environment and diversity in particular.

The contracting parties to the Convention shall provide access to the nations only on the basis of
prior informed consent. Where it is provided it would be upon mutually agreed terms. There have
been unending negotiations as to the terms of reference as far as providing access is concerned
and the Convention finally decided to keep it open to the contracting parties to negotiate upon
the terms. Article 15 and 16 of the Convention states that access should not be denied to the
countries, but where access is provided it must be based on informed consent and upon mutually
agreed terms.
Article 15 of the Convention states that, access to genetic resources:
1. Recognizing the sovereign rights of States over their natural resources, the authority to determine access to
genetic resources rests with the national governments and is subject to national legislation.
2. Each Contracting Party shall endeavor to create conditions to facilitate access to genetic resources for
environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the
objectives of this Convention.
3. For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in
this Article and Articles 16 and 19, are only those that are provided by Contracting Parties that are countries of
origin of such resources or by the Parties that have acquired the genetic resources in accordance with this
Convention.
4. Access, where granted, shall be on mutually agreed terms and subject to the provisions of this Article.
5. Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such
resources, unless otherwise determined by that Party.
6. Each Contracting Party shall endeavour to develop and carry out scientific research based on genetic resources
provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties.
7. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance
with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21
with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising
from the commercial and other utilization of genetic resources with the Contracting Party providing such resources.
Such sharing shall be upon mutually agreed terms.
Article 16 of the Convention states that, access and transfer of technology:
1. Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer
of technology among Contracting Parties are essential elements for the attainment of the objectives of this
Convention, undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to
other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological
diversity or make use of genetic resources and do not cause significant damage to the environment.
2. Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided
and/or facilitated under fair and most favourable terms, including on concessional and preferential terms where
mutually agreed, and, where necessary, in accordance with the financial mechanism established by Articles 20 and
21. In the case of technology subject to patents and other intellectual property rights, such access and transfer shall

be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual
property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5 below.
3. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that
Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided
access to and transfer of technology which makes use of those resources, on mutually agreed terms, including
technology protected by patents and other intellectual property rights, where necessary, through the provisions of
Articles 20 and 21 and in accordance with international law and consistent with paragraphs 4 and 5 below.
4. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that
the private sector facilitates access to, joint development and transfer of technology referred to in paragraph 1 above
for the benefit of both governmental institutions and the private sector of developing countries and in this regard
shall abide by the obligations included in paragraphs 1, 2 and 3 above.
5. The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on
the implementation of this Convention, shall cooperate in this regard subject to national legislation and international
law in order to ensure that such rights are supportive of and do not run counter to its objectives.

The Convention specifies the need to invest in research and training for sustainable use and
conservation. The Convention also provides for exchange of information and knowledge for this
purpose. The Convention states that the use of biotechnology should be in such a way that it take
care of its impact on environment. It is often heard that genetically modified organism and food
pose threat to environment. The Convention specifies the need for safe handling and also the
establishment of Conference of Parties (COP) and institutions such as secretariat to look into
these aspects. Bio safety Protocol has come into existence because of the efforts of the
Conference of Parties and of the adverse impacts of the biotechnology on environment.
Article 14 of the convention emphasizes the need for impact assessment for activities which have
significant impact on bio- diversity
1. Each Contracting Party, as far as possible and as appropriate, shall:
(a) Introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are
likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects
and, where appropriate, allow for public participation in such procedures;
(b) Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and
policies that are likely to have significant adverse impacts on biological diversity are duly taken into account;
(c) Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under
their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States
or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral
arrangements, as appropriate;

(d) In the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological
diversity within the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction,
notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or
minimize such danger or damage; and
(e) Promote national arrangements for emergency responses to activities or events, whether caused naturally or
otherwise, which present a grave and imminent danger to biological diversity and encourage international
cooperation to supplement such national efforts and, where appropriate and agreed by the States or regional
economic integration organizations concerned, to establish joint contingency plans.
2. The Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and
redress, including restoration and compensation, for damage to biological diversity, except where such liability is a
purely internal matter.

Though the Convention provides for impact assessment it has been the most controversial aspect
for legislators in many parts of the world. Impact assessment requires greater expertise to
analyze the adverse impact of any proposed development activity. Often the developer is not
convinced with the fact that the adverse impact of his project could be that grave and the project
proponent is not willing to accept the liability. Impact on bio diversity is tough to be made as the
impact may be shown much later after the development activity is taken up or it may not be
possible to analyze as to how and why such an impact has happened leaving the entrepreneur the
chance to escape liability.
Equitable sharing of benefits:
The benefits arising out of the biological resources by use of biotechnology or otherwise must be
distributed between the country of origin and the country which developed it. This has been
immensely attacked on the ground that the country which developed would have a right over the
invention and research would be adversely affected if it has to be distributed.
Regarding sharing the developing countries contend that the country providing biological
resource should benefit from transfer of technology besides providing financial resources and
sharing of research outcome. This is controversial in the context of trade regime which provide
patent rights to the inventor and also in the context of national policies. Other problem with the
patenting is the traditional knowledge and the rights of local communities over it. The rights of
the local communities over the traditional knowledge has been part of the convention but sharing
benefits to the community and identifying the communities who developed knowledge would be
a major task. The Convention also asserts that the provisions shall not affect the rights arising to

the contracting parties out of other international instruments or legal instruments in existence
unless they lead to a serious damage or threat to biological diversity. The issue of patenting the
medicinal utility of the neem which has been the traditional knowledge of our country and
consequent effort made by the environmentalists in our country to revoke the patent is only an
example of how traditional knowledge is at the verge of being exploited in the name of trade
rights.
Article 8 (j) of the Convention states that:
Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous
and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of
biological diversity and promote their wider application with the approval and involvement of the holders of such
knowledge, innovations and practices and encourage equitable sharing of the benefits arising out of the utilization of
such knowledge, innovations and practices

Traditional knowledge is the knowledge acquired from information based on experience and
adaptation to a local culture and environment. It can transcend by story telling, rituals or by
experiencing etc. it is not documented like other scientific knowledge or western concept of
knowledge. It could be specific to a locality or to a community. The knowledge could be
regarding medicinal value of shrubs, herbs or it could relate to cultivation etc. The knowledge
could be held commonly or by a group who have brought it to the community. There could be
situations where there are improvements made to the existing knowledge hence it could be
dynamic. There is no hard and fast rule that traditional knowledge should be ancient and static.
Principle 22 of Rio Declaration states that:
Indigenous people and their communities and other local communities have a vital role in environmental
management and development because of their knowledge and traditional practices. States should recognize and
duly support their identity, culture and interests and enable their effective participation in the achievement of
sustainable development.

There is a need to ensure that their knowledge is not made the domain of any individual or any
institution in the name of patent. This can happen in two broad ways firstly a person may patent
the traditional knowledge in the form it exists for example: In India turmeric (curcuma longa) is
known to heal wounds. Two Indians Suman K Das and Hari Har .P.Cohly were granted U.S.
Patent for turmeric to be used to heal wounds. The Indian Council for Scientific and Industrial
Research (CSIR) filed a case with the U.S. Patent office challenging the patent on the ground of
prior art i.e. existing public knowledge. CSIR claimed that turmeric has been used for
thousands of years to heal wounds and they have supported the argument with ancient Sanskrit

text books besides a paper published in the Journal of Indian Medical Association. U.S. Patent
office agreed with the CSIR claim and cancelled the patent granted.
A patent may be granted to an invention which takes the lead or clue from the existing traditional
knowledge. A drug named Jeevani is developed from a medicinal plant arogyapaacha based
on the information given by the kani tribals to Indian scientists. This knowledge is the traditional
knowledge of the kani tribe living in the Western Ghats region of kerala. They divulged the
medicinal use of the plant fruit and the scientists used chemical process to develop the medicine
Jeevani. The scientists used the leaves rather than fruits of the plant to develop medicine
however the clue that this plant has medicinal value has been the traditional knowledge of the
tribal people. The drug has been registered with a pharmaceutical company and a trust fund was
established to share the benefits arising out of the sales of the drug jeevani.
In 2010 the Conference of Parties (COP-10) to the Convention on Biological Diversity adopted
the international legal regime i.e. the Nagoya Protocol on Access to Genetic Resources and the
Fair and Equitable Sharing of Benefits arising from their Utilization. The Protocol now provides
international legal frame work for equitable sharing of benefits arising from access and use of
genetic resources.
Bio Safety Protocol:
The Cartegena Protocol on Bio safety is an effort of the Conference of Parties of the Convention
on Biological Diversity. Article 19 of Convention on Biological Diversity states about the
handling

of

Bio

technology

and

distribution

of

its

benefits:

1. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the
effective participation in biotechnological research activities by those Contracting Parties, especially developing
countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties.
2. Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and
equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from
biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on
mutually agreed terms.
3. The Parties shall consider the need for and modalities of a protocol setting out appropriate procedures, including,
in particular, advance informed agreement, in the field of the safe transfer, handling and use of any living modified

organism resulting from biotechnology that may have adverse effect on the conservation and sustainable use of
biological diversity.
4. Each Contracting Party shall, directly or by requiring any natural or legal person under its jurisdiction providing
the organisms referred to in paragraph 3 above, provide any available information about the use and safety
regulations required by that Contracting Party in handling such organisms, as well as any available information on
the potential adverse impact of the specific organisms concerned to the Contracting Party into which those
organisms are to be introduced.

The Protocol was adopted in 2000 and came into force on 11 th September 2003. The Protocol
intends to regulate handling and safe transfer of genetically engineered products from one
country to other country. The Protocol is based on precautionary approach. Principle 15 of the
Rio Declaration states that 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. This approach known as precautionary approach provides
that where risk is not ascertainable than apply precaution. Applying this when risk due to
genetically modified product is not ascertainable and the importing country is apprehensive it
may be given the right to prohibit entry of such products either directly or indirectly. This has
been the argument of developing nations. The countries which produce the genetically
engineered crops have not signed the Protocol so far. More than 100 countries have been parties
to the Protocol.
The countries which favored the protocol assert that the importing country should have
information on adverse impacts of the products on environment and health and must have a right
to say NO to their entry. While the developed countries argue that these issues should fall under
trade (WTO) regime and the countries should not be given right to say NO unless the risks are
ascertained, however developing countries did not agree to this contention. The Protocol tries to
regulate the products in two categories. Firstly those (Genetically Modified Organisms) GMO
which are directly introduced into the environment and the other are the food, feed or processing
products which are not directly released into the environment.
As far as the entry of GMO directly into the environment is concerned the Protocol specifies AIA
procedure i.e. Advance Informed Agreement. The country importing has to enter into an advance
informed agreement for exporting such products into their country. For the GMO indirectly
entering the environment by way of food, feed or process is concerned the Protocol specifies that

the products may be exported with shipment documents specifying that it may contain
genetically engineered products and provide contact information for further clarification. The
country importing on taking further information may analyze risk as per the risk assessment
procedure provided in the Protocol. Based on the report of the analysis it may either accept the
products or reject them for import.
The Protocol also provides for the establishment of clearing house which shall provide
information, a secretariat, the ICCP (Inter Governmental Committee on Cartegena Protocol).
ICCP is an adhoc body under the Protocol which analyses the implementation and other aspects
of the Protocol.

Climate Change
Climate change has been a matter of concern for the world community in view of the ascertained
risks associated with it. It is popularly said that those who choose to remain unconcerned with
climate change are the ones who choose death. Climate change occurs due to various factors
some of which are human induced. Green house gases such as carbon dioxide, methane etc.
absorb the infra red rays from the earth surface and makes the atmosphere warmer than it should
be. These gases remain in atmosphere for longer duration leading to global warming. Global
warming is the increase in the temperature of the earth, which has been recorded to have
increased by 0.6 degree in the last 100 years which is a matter of great concern as the difference
from ice age to today average temperature is only 6 degree. Global warming results in rise in sea
level, loss of biodiversity, coral bleaching, decline in plant and animal life etc. Sea level rise
occurs due to melting of glaciers and the increase in the temperature of ocean water. This rise
will lead to coastal inundation besides affecting the quality of surface water and ground water.
Climate change is likely to affect food security, bio sphere, and the entire eco systems. Hence
there is need to check the global warming. Global warming and climate change are often used
inter changeably however climate change is a broader term which encompasses global warming.
Global warming is chiefly due to anthropogenic emissions which need to be regulated to counter
the climate change. The reason why climate change needs to be anticipated and attacked is

because of its ascertained possible adverse effects as majority of scientists are in consonance
with the thought that human actions have contributed significantly to global warming.
United Nations Framework Convention on Climate Change:
United Nations Environment Program (UNEP) and World Meteorological Organization (WMO)
constituted IPCC (Inter Governmental Panel on Climate Change) in 1988 to study the aspects of
climate change. IPCC recommended for the Climate Change Convention. This Convention is
adopted in Rio Conference in 1992 and came into force in 1994 with required number of
signatories. This is the first major effort to curb Green House Gases. In 1987 the Montreal
Protocol on ozone depleting substances has been adopted which imposes targets on reducing
emissions of ozone depleting substances. The Climate Change Convention (UNFCCC) intends to
regulate the green house gases emissions which are not covered by Montreal protocol. The
convention defines climate change:
"Climate change" means a change of climate which is attributed directly or indirectly to human activity that alters
the composition of the global atmosphere and which is in addition to natural climate variability observed over
comparable time periods.

The Convention aims to stabilize green house gases at a level that would prevent dangerous
anthropogenic interference within a time frame so as to allow ecosystems to adopt and to ensure
that food production is not affected. As the green house gases remain in atmosphere for more
than a decade effort must be made to remove them from the atmosphere. One of the popularly
known measures to remove them is sink or create reservoirs for keep sake of Green House
Gases. The convention defines sink:
"Sink" means any process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor of a
greenhouse gas from the atmosphere.

The solution lies in long term efforts. Climate change cannot be countered in a year or even in a
decade however the need to initiate measures to combat climate change cannot be postponed in
view of the possible adverse consequences. Negotiating process for the convention evoked many
controversial debates some of which are justified. Many States contended that per head emission
of greenhouse gases in their States is either negligible or far lesser than developed countries. The

countries which are in the process of development cannot be asked to forego it in the name of
reduction of green house gas emissions. The need to develop is as important for them as the need
to protect environment. Developed nations have contributed immensely for the climate change in
view of the huge unregulated emissions that they have permitted in their States. The Association
of Small Island States (AOSIS) strongly pursued the negotiating process to a logical conclusion
as they are more vulnerable to the sea level rise. European Union and Non European Union
developed countries formed into two groups to represent the stand of the group. A group of 77
States in the name of G 77 represented the concern of developing nations. However none of
these groups always had the common voice as the individual States interest would be at conflict
with the groups interest at times. These controversial interests of States resulted in common but
differentiated responsibility. This principle common but differentiated responsibility
essentially states that all nations shall have the common responsibility to address the climate
change however the responsibility may vary keeping in view the contribution of the States to the
climate change. The developed countries have contributed to the climate change mostly in view
of the huge quantity of green house gases they emit. The developing countries do not wish to
take the responsibility to mitigate the impact of climate change which is the result of developed
countries besides it being unwanted costs on them. The developing countries also are under
pressure to develop in view of their socio economic conditions and cannot take up any conditions
on imposing emission targets. Small island developing countries are at greater threat as they will
be highly affected due to sea level rise, floods, inundation etc. and they wanted the Convention to
be adopted. This resulted in adopting the principle of common but differentiated responsibility.
Principle 7 of Rio Declaration states that States have common but differentiated responsibility.
The Convention states that countries are required to prepare inventory of emissions and efforts
made to mitigate emissions and submit to the Conference of Parties (COP) in accordance with
Article 12 of the Convention. The countries listed in Annexure I of the Convention (Annex I) are
required to reduce emissions to their 1990 level by the end of decade i.e. 2000. This has been an
additional responsibility placed on Annex I countries and the countries listed in Annexure II of
the Convention (Annex II) are required to also contribute to financial resources and transfer
technology and other information in accordance with Article 12 to the COP. This has been the
additional responsibility of Annex I and II nations. However there are criticisms that the

responsibility of the Annex Nations is not spelled out well and that the developed countries have
ensured that there is an ambiguity in the convention. Article 4 of the Convention speaking for the
commitments of the Nations which are often critiqued as ambiguously worded at the instance of
developed Nations is as follows:
1. All Parties, taking into account their common but differentiated responsibilities and their specific national and
regional development priorities, objectives and circumstances, shall:
(a) Develop, periodically update, publish and make available to the Conference of the Parties, in accordance with
Article 12, national inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse
gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the
Conference of the Parties;
(b) Formulate, implement, publish and regularly update national and, where appropriate, regional programmes
containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals
by sinks of all greenhouse gases not controlled by the Montreal Protocol, and measures to facilitate adequate
adaptation to climate change;
(c) Promote and cooperate in the development, application and diffusion, including transfer, of technologies,
practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases not
controlled by the Montreal Protocol in all relevant sectors, including the energy, transport, industry, agriculture,
forestry and waste management sectors;
(d) Promote sustainable management, and promote and cooperate in the conservation and enhancement, as
appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including
biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems;
(e) Cooperate in preparing for adaptation to the impacts of climate change; develop and elaborate appropriate
and integrated plans for coastal zone management, water resources and agriculture, and for the protection and
rehabilitation of areas, particularly in Africa, affected by drought and desertification, as well as floods;
(f) Take climate change considerations into account, to the extent feasible, in their relevant social, economic and
environmental policies and actions, and employ appropriate methods, for example impact assessments,
formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public
health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to
climate change;
(g) Promote and cooperate in scientific, technological, technical, socio-economic and other research, systematic
observation and development of data archives related to the climate system and intended to further the
understanding and to reduce or eliminate the remaining uncertainties regarding the causes, effects, magnitude
and timing of climate change and the economic and social consequences of various response strategies;
(h) Promote and cooperate in the full, open and prompt exchange of relevant scientific, technological, technical,
socio-economic and legal information related to the climate system and climate change, and to the economic and
social consequences of various response strategies;
(i) Promote and cooperate in education, training and public awareness related to climate change and encourage
the widest participation in this process, including that of non- governmental organizations; and
(j) Communicate to the Conference of the Parties information related to implementation, in accordance with
Article 12.

2. The developed country Parties and other Parties included in Annex I commit themselves specifically as provided
for in the following:
(a) Each of these Parties shall adopt national1 policies and take corresponding measures on the mitigation of climate
change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse
gas sinks and reservoirs. These policies and measures will demonstrate that developed countries are taking the lead
in modifying longer-term trends in anthropogenic emissions consistent with the objective of the Convention,
recognizing that the return by the end of the present decade to earlier levels of anthropogenic emissions of carbon
dioxide and other greenhouse gases not controlled by the Montreal Protocol would contribute to such
modification, and taking into account the differences in these Parties' starting points and approaches, economic
structures and resource bases, the need to maintain strong and sustainable economic growth, available technologies
and other individual circumstances, as well as the need for equitable and appropriate contributions by each of these
Parties to the global effort regarding that objective. These Parties may implement such policies and measures
jointly with other Parties and may assist other Parties in contributing to the achievement of the objective of the
Convention and, in particular, that of this subparagraph;
(b) In order to promote progress to this end, each of these Parties shall communicate, within six months of the
entry into force of the Convention for it and periodically thereafter, and in accordance with Article 12, detailed
information on its policies and measures referred to in subparagraph (a) above, as well as on its resulting projected
anthropogenic emissions by sources and removals by sinks of greenhouse gases not controlled by the Montreal
Protocol for the period referred to in subparagraph (a), with the aim of returning individually or jointly to their
1990 levels these anthropogenic emissions of carbon dioxide and other greenhouse gases not controlled by the
Montreal Protocol. This information will be reviewed by the Conference of the Parties, at its first session and
periodically thereafter, in accordance with Article 7;
(c) Calculations of emissions by sources and removals by sinks of greenhouse gases for the purposes of
subparagraph (b) above should take into account the best available scientific knowledge, including of the effective
capacity of sinks and the respective contributions of such gases to climate change. The Conference of the Parties
shall consider and agree on methodologies for these calculations at its first session and review them regularly
thereafter;
(d) The Conference of the Parties shall, at its first session, review the adequacy of subparagraphs (a) and (b)
above. Such review shall be carried out in the light of the best available scientific information and assessment on
climate change and its impacts, as well as relevant technical, social and economic information. Based on this
review, the Conference of the Parties shall take appropriate action, which may include the adoption of amendments
to the commitments in subparagraphs (a) and (b) above. The Conference of the Parties, at its first session, shall
also take decisions regarding criteria for joint implementation as indicated in subparagraph (a) above. A second
review of subparagraphs (a) and (b) shall take place not later than 31 December 1998, and thereafter at regular
intervals determined by the Conference of the Parties, until the objective of the Convention is met;
(e) Each of these Parties shall:
i) Coordinate as appropriate with other such Parties, relevant economic and administrative instruments
developed to achieve the objective of the Convention; and
(ii) Identify and periodically review its own policies and practices which encourage activities that lead to greater
levels of anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol than would
otherwise occur;
(f) The Conference of the Parties shall review, not later than 31 December 1998, available information with a
view to taking decisions regarding such amendments to the lists in Annexes I and II as may be appropriate, with
the approval of the Party concerned;

(g) Any Party not included in Annex I may, in its instrument of ratification, acceptance, approval or accession, or
at any time thereafter, notify the Depositary that it intends to be bound by subparagraphs (a) and (b) above. The
Depositary shall inform the other signatories and Parties of any such notification.
3. The developed country Parties and other developed Parties included in Annex II shall provide new and
additional financial resources to meet the agreed full costs incurred by developing country Parties in complying
with their obligations under Article 12, paragraph 1. They shall also provide such financial resources, including
for the transfer of technology, needed by the developing country Parties to meet the agreed full incremental costs
of implementing measures that are covered by paragraph 1 of this Article and that are agreed between a
developing country Party and the international entity or entities referred to in Article 11, in accordance with that
Article. The implementation of these commitments shall take into account the need for adequacy and
predictability in the flow of funds and the importance of appropriate burden sharing among the developed
country Parties.
4. The developed country Parties and other developed Parties included in Annex II shall also assist the
developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting
costs of adaptation to those adverse effects.
5. The developed country Parties and other developed Parties included in Annex II shall take all practicable steps
to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound
technologies and know-how to other Parties, particularly developing country Parties, to enable them to
implement the provisions of the Convention. In this process, the developed country Parties shall support the
development and enhancement of endogenous capacities and technologies of developing country Parties. Other
Parties and organizations in a position to do so may also assist in facilitating the transfer of such technologies.
6. In the implementation of their commitments under paragraph 2 above, a certain degree of flexibility shall be
allowed by the Conference of the Parties to the Parties included in Annex I undergoing the process of transition
to a market economy, in order to enhance the ability of these Parties to address climate change, including with
regard to the historical level of anthropogenic emissions of greenhouse gases not controlled by the Montreal
Protocol chosen as a reference.
7. The extent to which developing country Parties will effectively implement their commitments under the
Convention will depend on the effective implementation by developed country Parties of their commitments
under the Convention related to financial resources and transfer of technology and will take fully into account
that economic and social development and poverty eradication are the first and overriding priorities of the
developing country Parties.
8. In the implementation of the commitments in this Article, the Parties shall give full consideration to what
actions are necessary under the Convention, including actions related to funding, insurance and the transfer of
technology, to meet the specific needs and concerns of developing country Parties arising from the adverse
effects of climate change and/or the impact of the implementation of response measures, especially on:
(a) Small island countries;
(b) Countries with low-lying coastal areas;
(c) Countries with arid and semi-arid areas, forested areas and areas liable to forest decay;
(d) Countries with areas prone to natural disasters;
(e) Countries with areas liable to drought and desertification;
(f) Countries with areas of high urban atmospheric pollution;

(g) Countries with areas with fragile ecosystems, including mountainous ecosystems;
(h) Countries whose economies are highly dependent on income generated from the production, processing and
export, and/or on consumption of fossil fuels and associated energy-intensive products; and
(i) Land-locked and transit countries.
Further, the Conference of the Parties may take actions, as appropriate, with respect to this paragraph.
9. The Parties shall take full account of the specific needs and special situations of the least developed countries
in their actions with regard to funding and transfer of technology.
10. The Parties shall, in accordance with Article 10, take into consideration in the implementation of the
commitments of the Convention the situation of Parties, particularly developing country Parties, with economies
that are vulnerable to the adverse effects of the implementation of measures to respond to climate change. This
applies notably to Parties with economies that are highly dependent on income generated from the production,
processing and export, and/or consumption of fossil fuels and associated energy-intensive products and/or the
use of fossil fuels for which such Parties have serious difficulties in switching to alternatives.

Annex I consists of developed nations which are responsible for global warming and Annex II
consists of the same, however countries which are in transition are facing economic make
over are not listed in Annex II as they cannot afford financial support as contemplated in
Article 4 of the Convention.

Kyoto Protocol
The industrialized states have contributed to the climate change in their past and the developing
nations refused to take any responsibility under the Convention as they feel that the Convention
would adversely affect their economic and social interests. In view of the above differences and
the language used in the text of the convention made it difficult to develop strategy for
implementation. The COP met for the first time in 1995 and discussed the adequacy of the
countries to implement the Convention. IPCC also published its report in 1995 where in it
reasserted that human activities are changing the climate. In 1997 the COP adopted Kyoto
Protocol to draw more comprehensive and adoptable targets and time tables for emission
reduction but due to the delay in ratifying the protocol it came into force only in 2005. Article 17
of the Convention empowers the COP to adopt protocol, which reads as follows:
1. The Conference of the Parties may, at any ordinary session, adopt protocols to the Convention.
2. The text of any proposed protocol shall be communicated to the Parties by the secretariat at least six months
before such a session.

3. The requirements for the entry into force of any protocol shall be established by that instrument.
4. Only Parties to the Convention may be Parties to a protocol.
5. Decisions under any protocol shall be taken only by the Parties to the protocol concerned.

Kyoto Protocol in essence has been a compromise or rather a workable solution to the Climate
Change Convention. This Protocol emphasis is on regulation of the six green house gases
domestic emissions subject to the overall regulation of the COP. The Convention requires the
nations to reduce emissions while the Protocol helps to achieve it through market based
mechanisms. The parties reached to the agreement that the protocol would introduce flexibility
mechanism such as:
1

Emissions trading,

Joint implementation and

Clean Development Mechanism (CDM).


The agreement was also reached on the issue of credits for forests and agricultural land and re
vegetation as sinks and an action for compliance. The COP 11 th meeting was held in 2005 in
view of the fact that Protocol is coming into force in 2005. The meeting was held in two ways
firstly meeting of the parties to the protocol (MOP) and meeting of the parties to the
convention (COP). The meeting came out with implementation plans regarding emission
trading, joint implementation and CDM. The Kyoto protocol sets targets and time schedule by
quantifying emissions. The countries which have accepted commitments under the protocol
(Annex B Nations) would be given a specified quota of emission (Assigned Amount Units
(AAUs)) which they are required to maintain any excess emissions have to be purchased from
any other country which has garnered credits by limiting the emissions below the quota.
Article 17 of the protocol states the emission trading:
The Conference of the Parties shall define the relevant principles, modalities, rules and guidelines, in particular
for verification, reporting and accountability for emissions trading. The Parties included in Annex B may
participate in emissions trading for the purposes of fulfilling their commitments under Article 3. Any such
trading shall be supplemental to domestic actions for the purpose of meeting quantified emission limitation
and reduction commitments under that Article.

Article 3 of the protocol states:


1. The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon
dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts,
calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and
in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by
at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.

2. Each Party included in Annex I shall, by 2005, have made demonstrable progress in achieving its
commitments under this Protocol.
3. The net changes in greenhouse gas emissions by sources and removals by sinks resulting from direct humaninduced land-use change and forestry activities, limited to afforestation, reforestation and deforestation since
1990, measured as verifiable changes in carbon stocks in each commitment period, shall be used to meet the
commitments under this Article of each Party included in Annex I. The greenhouse gas emissions by sources and
removals by sinks associated with those activities shall be reported in a transparent and verifiable manner and
reviewed in accordance with Articles 7 and 8.
4. Prior to the first session of the Conference of the Parties serving as the meeting of the Parties to this Protocol,
each Party included in Annex I shall provide, for consideration by the Subsidiary Body for Scientific and
Technological Advice, data to establish its level of carbon stocks in 1990 and to enable an estimate to be made of
its changes in carbon stocks in subsequent years. The Conference of the Parties serving as the meeting of the
Parties to this Protocol shall, at its first session or as soon as practicable thereafter, decide upon modalities, rules
and guidelines as to how, and which, additional human-induced activities related to changes in greenhouse gas
emissions by sources and removals by sinks in the agricultural soils and the land-use change and forestry
categories shall be added to, or subtracted from, the assigned amounts for Parties included in Annex I, taking
into account uncertainties, transparency in reporting, verifiability, the methodological work of the
Intergovernmental Panel on Climate Change, the advice provided by the Subsidiary Body for Scientific and
Technological Advice in accordance with Article 5 and the decisions of the Conference of the Parties. Such a
decision shall apply in the second and subsequent commitment periods. A Party may choose to apply such a
decision on these additional human-induced activities for its first commitment period, provided that these
activities have taken place since 1990.
5. The Parties included in Annex I undergoing the process of transition to a market economy whose base year or
period was established pursuant to decision 9/CP.2 of the Conference of the Parties at its second session shall use
that base year or period for the implementation of their commitments under this Article. Any other Party
included in Annex I undergoing the process of transition to a market economy which has not yet submitted its
first national communication under Article 12 of the Convention may also notify the Conference of the Parties
serving as the meeting of the Parties to this Protocol that it intends to use an historical base year or period other
than 1990 for the implementation of its commitments under this Article. The Conference of the Parties serving as
the meeting of the Parties to this Protocol shall decide on the acceptance of such notification.
6. Taking into account Article 4, paragraph 6, of the Convention, in the implementation of their commitments
under this Protocol other than those under this Article, a certain degree of flexibility shall be allowed by the
Conference of the Parties serving as the meeting of the Parties to this Protocol to the Parties included in Annex I
undergoing the process of transition to a market economy.
7. In the first quantified emission limitation and reduction commitment period, from 2008 to 2012, the assigned
amount for each Party included in Annex I shall be equal to the percentage inscribed for it in Annex B of its
aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A in 1990,
or the base year or period determined in accordance with paragraph 5 above, multiplied by five. Those Parties
included in Annex I for whom land-use change and forestry constituted a net source of greenhouse gas emissions
in 1990 shall include in their 1990 emissions base year or period the aggregate anthropogenic carbon dioxide
equivalent emissions by sources minus removals by sinks in 1990 from land-use change for the purposes of
calculating their assigned amount.
8. Any Party included in Annex I may use 1995 as its base year for hydrofluorocarbons, perfluorocarbons and
sulphur hexafluoride, for the purposes of the calculation referred to in paragraph 7 above.
9. Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to
Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7.
The Conference of the Parties serving as the meeting of the Parties to this Protocol shall initiate the

consideration of such commitments at least seven years before the end of the first commitment period referred to
in paragraph 1 above.
10. Any emission reduction units, or any part of an assigned amount, which a Party acquires from another Party
in accordance with the provisions of Article 6 or of Article 17 shall be added to the assigned amount for the
acquiring Party.
11. Any emission reduction units, or any part of an assigned amount, which a Party transfers to another Party in
accordance with the provisions of Article 6 or of Article 17 shall be subtracted from the assigned amount for the
transferring Party.
12. Any certified emission reductions which a Party acquires from another Party in accordance with the
provisions of Article 12 shall be added to the assigned amount for the acquiring Party.
13. If the emissions of a Party included in Annex I in a commitment period are less than its assigned amount
under this Article, this difference shall, on request of that Party, be added to the assigned amount for that Party
for subsequent commitment periods.
14. Each Party included in Annex I shall strive to implement the commitments mentioned in paragraph 1 above
in such a way as to minimize adverse social, environmental and economic impacts on developing country
Parties, particularly those identified in Article 4, paragraphs 8 and 9, of the Convention. In line with relevant
decisions of the Conference of the Parties on the implementation of those paragraphs, the Conference of the
Parties serving as the meeting of the Parties to this Protocol shall, at its first session, consider what actions are
necessary to minimize the adverse effects of climate change and/or the impacts of response measures on Parties
referred to in those paragraphs. Among the issues to be considered shall be the establishment of funding,
insurance and transfer of technology.

This is how emission trading works as far as joint implementation is concerned it requires the
States or private parties to develop projects which help to remove green house gases (sinks),
there by they can be traded. Clean Development Mechanism requires nations to switch to clean
technologies and energy efficient technologies to reduce emissions that have adverse impact on
climate change. The compliance is taken care by constituting an enforcement branch and a
facilitative branch. The enforcement branch would enforce the Protocol particularly when an
Annex I country fails to implement the provisions. The facilitative branch will provide all
support such as information, technology etc. for implementation. There are specific
consequences within the protocol for non compliance and appeal from enforcement branch
decision lies to the COP/ MOP which can reverse the orders provided 2/3 rd members agree to
change the order. Action for compliance include not allowing selling credits, make up,
submitting action plan etc. The COP would renegotiate for the next commitment periods from
2008 to 2012 and the second commitment period from 2013 to 2017. It was agreed by
industrialized States to commit to the reduction five percent against the 1990 level during the
commitment period from 2008 to 2012. The major difference between the Convention and the

Protocol is that while the convention merely encouraged and influenced the States to reduce
emissions kyoto protocol could commit the developed Nations with binding targets.
In 2008 Indian Government spelt out its National Action Plan on Climate Change. The plan
essentially envisages eight missions. These missions are to be implemented for both mitigation
and adaptation of climate change, however they are proactive measures of the government and
do not create any right to challenge their non-implementation. The eight missions are: 1)
National Solar Mission 2) National Mission for Enhanced Energy Efficiency 3) National Mission
on Sustainable Habitat 4) National Water Mission 5) National Mission for Sustaining Himalayan
Eco system 6) National Mission

for Green India 7) National Mission

for Sustainable

Agriculture and 8) National Mission on Strategic Knowledge for Climate Change


Environment and Economics:
The link between environment and economics can be drawn from the fact that economic system
essentially utilizes natural resources for production and the process is likely to release pollutants
into the nature besides the fact that nature supplies amenities for consumption at a low cost.
Economic activity per se has an impact on ecology, resources and development. Hence the
concept of sustainable development initially was meant to be understood as an integration of
ecology and environment; however sustainable development was given a broader meaning over a
period of time. The study of the impact of economic activity on environment is said to be the
environment economics, however this field has grown exponentially and a further division
within the broad field emerged as resource economics, ecological economics and environment
economics.
Resource economics is the study of the impact of economic activity on resource constraint and
the optimum utilization of resources to ensure their availability for a wider utilization and the
study of economic aspects of renewable and non renewable resources. Ecological economics is
the study of the impact of the economic activity on ecology and ecosystem. Environment
economics is often refereed to the cost benefit analysis. Environment economics includes the
study of the actual impact of economic activity on environment (Positive economics) and the

study of the economic policies and practices and their likely impact on environment (Normative
economics). Cost benefit analysis is not simple very often actual value is considered than its use
value. Cost is determined by supply and demand however for environmental goods there is no
control on supply as nature provides it similarly it is difficult to exclude environmental goods
from supply. As environmental law is the law that regulates human activity which has an impact
on environment most often the economic activity of human beings is regulated by environmental
law.
Trade and Environment:

Trade measure can have impact on environment similarly

environmental measure can have impact on trade. The nexus between the two can be understood
from the following two examples:
Trade measures can have detrimental impact on environment for example it was observed in the
case of Indian council for Enviro legal action V Union of India (AIR 1996 SC 1446) that
manufacture of H acid is banned in some developed countries but the demand for it still exist in
those countries. The demand prompted some manufacturers in developing countries to
manufacture these products which led to pollution due to the release of toxic effluents arising
from the manufacturing process of these products. Few districts in Rajasthan are so polluted that
ground water in most of the places turned acidic due to the manufacture of H acid.
Environment measures have an impact on trade for example in the case before the Environment
Measures and International Trade (EMIT) dispute settlement body of General Agreement on
trade and Tariff (GATT) a complaint was filed by Mexico on the embargo by United States (US)
on import of tuna. US rejected to import the tuna as it contended that Mexico while catching tuna
incidentally killed dolphin which is prohibited as per the Marine Mammal Protection Act of
United States. This is how environment measure can affect trade. Though this case was decided
in favor of Mexico because the EMIT group of GATT felt that US could place embargo if the
product is not safe i.e. tuna but cannot place embargo based upon process i.e. method of catching
tuna. Environment groups criticized this decision. WTO itself changed its stance in the
subsequent cases.
The impact of trade measures on environment and environment measures on trade are
undisputed. UN General Assembly requested GATT secretariat to submit its report to the

negotiating parties of the Stockholm conference on issues pertaining to trade and environment.
GATT prepared a report titled Industrial pollution and its impact on trade and it suggested for
the creation of group which led to the emergence of Environment Measures and International
Trade (EMIT). EMIT group was almost non functional until 1991 when the tuna dolphin dispute
was referred to it. GATT however had been unconcerned with the environment issues and it felt
that environment measures will be used by States as protectionist measure. Protectionist measure
means an excuse which may be used by the States to adopt their own whims and practices in
trade regime. They called this new kind of protectionism as green protectionism. GATT during
the Tokyo round has come up with the Technical Barriers to Trade Agreement (TBT) which is
popularly known as Standards Code, which ensures that states do not use environmental
measures or others in the name of technical regulations to hinder free trade. Later in the Uruguay
round certain changes were made to TBT besides agreement on SPS (Sanitary and Phyto
Sanitary Measures) measures, and including services within it besides also adopting TRIPS and
others. The main out come of the Uruguay round also is the setting up of World Trade
Organization (WTO). GATT as such has been a precursor to WTO. The main difference has been
that while GATT is only set of agreements WTO is an organization. WTO constituted Committee
on Trade and Environment (CTE) in the place of EMIT. Sanitary and Phyto sanitary agreement
of WTO ensures that contracting parties may impose sanitary or phyto sanitary measure if they
feel that it is injurious to the plant, animal or human health including the wild flora and fauna.
This measure must be applied based on international standards for food, feed etc. and the risk
must be ascertained. The measure should not be used to hinder free trade but parties must ensure
that scientifically ascertained risk and internationally agreed standards are to be considered to
impose a measure. The application of the principles Most Favored Nation (MFN) principle and
the National Treatment principle was held in implementing environment agreements and
decision making. However these principles have to be applied in a transparent and fair manner.
Most Favored nation is a status confirmed by one state on another which requires that a state
cannot apply one standard to one nation and another standard to another nation. For example in
the case shrimp turtle case (India, Malaysia, Pakisthan and Thailand V U.S.) US banned import
of shrimp from India, Pakistan, Malaysia and few other Asian countries on the ground that the
shrimp catching led to the take of sea turtles which are endangered species listed as endangered

under US Endangered Species Act 1973. Take means hunting, capture, harassment etc. the
countries complained to the dispute settlement body which held that the Sovereign States have
the right to protect the environment and impose measures to protect the environment. But in this
case US banned import from Asian countries while allowing from Caribbean nations from
western hemisphere some time to use technology such as TEDs (Turtle Exclusive Devices) and
provided financial aid. So the dispute settlement body held that it is inconsistent with Most
Favored Nation (MFN) principle and decided in favor of Asian nations. But it specifically held
that it has not decided on whether sovereign nations can adopt effective measures to protect
endangered species such as sea turtles. Measures to protect sea turtles would be legitimate under
Article XX of GATT
National treatment is a principle under which the nations are required to provide equal treatment
to nationals and foreign nationals. For example in Venezuela, Brazil V United States, United
States imposed embargo on gasoline supplied by Venezuela on the ground that it did not confirm
to standards. Venezuela and Brazil argued that United States imposed different standards for the
quality of gasoline supplied by domestic suppliers and different standards to Venezuela and
Brazil suppliers. Dispute settlement body of World Trade Organization found fault with the
United States and ruled in favor of Venezuela and Brazil as United States action is inconsistent
with the principle of National treatment. These two principles are found in most of the WTO
agreements and GATT agreements.