The Concepts of Suspended Sovereignty and Responsibility to Protect

 

    The statutory regulation of  storage, handling and disposal of hazardous materials is related to occupational hazards and not really part of  environmental law. Most important statutes deal with handling of hazardous wastes, disposal and remediation.  When some materials turn hazardous due to prevailing  conditions owing to extended time of storage in an unregulated situation and in an  unsafe place and finally reacts with the atmospheric elements to turn into unstable and dangerous compounds can become ticking bombs and result in an environmental crisis causing severe pollution of air, water and soil. 

    The Beirut blast is clearly an environmental and ecological crisis that can affect the air quality, soil and water resources in and around the city. It is not clear if it will cause any disruption of air quality within the region.  The incident has exposed to the world the total ignorance, neglect and criminal negligence of the Lebanese government in handling hazardous materials. Ammonium Nitrate has many uses including the making of explosives. The port authorities have clearly ignored several warnings and neglected the storage of a reactive and flammable compound by leaving it unregulated for several years without putting in place requisite safety standards despite its proximity to general population. It simply  calls for strict liability on the part of the Government without none else to take the blame.  In the case of Lebanon, the storage of such volatile materials and exposing them to atmospheric elements for more than six years and thus endangering the lives of those living within the vicinity places the liability  directly on the port authorities.  Citizens have a right to sue the government and claim compensation for the damage incurred by them as several citizens were left homeless.  But, does the government have the wherewithal to compensate its citizens either monetarily or otherwise? It seems it is helpless as one follows the various news articles published on the internet and watching the recent interview of  Minister of Economy and Trade Mr. Raoul Nehme by  BBC’s Stephen Sackur.  It is more than evident that  only there is no one in the government willing to take responsibility for the act of   criminal negligence committed against its people of with every one of the Ministers passing the buck and claiming international monetary aid without accountability.  Given the state of economy in the country with poverty levels rising, and failure of the government to provide basic amenities including electricity and drinking water to its citizens, Lebanon can very well be declared a fragile and failed state calling for intervention by the international community to save the nation from complete breakdown. A fragile and failed state threatens public health care infrastructure, thus risking global healthcare systems considering the COVID -19 pandemic. It further  destabilizes regional security and requires humanitarian intervention by the UN and international community. 

    In this light, I wish to state here that the  paper in this post was written by me  in the year 2012 and published it while I was spending some time in the US.  I just noticed that  this paper was hacked to pieces and I had to edit the same for the purpose of this post. The print out that I normally store seems to have vanished and therefore, I do not have an earlier copy to compare and edit. In the event of any factual errors in the paper, it may have been due to my oversight in reviewing. I have not really updated the paper with any recent information.  The content of the paper reflects my thinking on the subject that prevailed at that point in time.  I am posting it here with the hope that there may be readers who think on the same lines as I do for the benefit of the helpless citizens of Lebanon and similar nations facing  serious environmental crisis. The international community needs to come together to set an example of how international monetary aid can demand absolute accountability and transparency from governments or nations receiving such aid and assistance.

 Working Paper on 'Making the United Nations work for Global Commons': Amending the UN Charter

Corrigendum to earlier blogpost titled "When Economic interests override Environmental Concerns"

The title “When economic interests override environmental concerns” in one of my blog posts is an objective claim referring to the exclusive issue of demanding a social impact assessment for the Chennai-Salem Corridor at a stage when the original project had been commissioned and was clearly underway. My title presumably does not endorse the view that environmental norms need to be diluted to attract investments.   In retrospect, I am now convinced that the apt title for the blogpost would have been “When political interests override environmental concerns”. The title and the blog post express the futility in reopening environmental and social assessment of a project, that has changed its targets and direction midway to suit political and vested interests. The phrase. ‘Economic interests” specifically refers to those investors who have been awarded contracts in the Bharatmala project and any reopening of assessments could lead to stoppage of work merely because a major route within the state of Tamil Nadu has been changed to suit political purposes.  Essentially, strategic environmental assessment needs to be completed before commission of the projects and contracts have been awarded. It would be legally incorrect to subject the original project whose EIA is completed, at least on paper, to large scale changes that can affect a different region that has not been assessed for environmental and social impacts in the original EIA report.

 

The blog post merely espouses the case of those investors who may face financial constraints if the contracts have been stalled for reasons that are political. It further believes the best option available to all stakeholders would be to proceed with the implementation of original project where environmental impact assessment and social impact assessment have been completed.  Yet, as on date, from details available on the internet, it appears that contracts have been awarded for only 27% of the project and the rest have been delayed for several reasons including COVID-19.

 

Despite all good intentions, the pandemic has brought to standstill many a project including large scale infrastructure projects. In the interregnum, it may be time to review the project and the EIA reports prepared in relation to the entire Bharatmala project with an inquiry into the shelving of Chennai-Madurai Economic Corridor and if the project is to be recommenced post-pandemic, it must follow the original project plan of creating the Chennai-Madurai Economic Corridor, instead of the Chennai-Salem Highway. In any case, acquisition of land for such large-scale infrastructure projects should follow after an extensive EIA report has been prepared since the report shall list out if any agricultural lands are being acquired for the purpose and if any ecologically sensitive areas are being threatened. Further, the EIA report needs to list out any mitigation and adaptation plans are in place subsequent to such acquisition. Acquisition of any land for such large-scale infrastructure projects should be within norms listed for land-use change and if such changes can be justified with a cost-benefit analysis.

 

 

 

 

 

Environmental Refugees and Internally Displaced Migrants

On the World Environment Day, I thought it befitting to write about the status of environmental refugees who are victims of apathy exhibited by governments across the world. A recent ruling by the United Nations Human Rights Committee that governments cannot refuse to accept those seeking refuge in other nations due to environmental factors and claiming to be victims of climate change.

UN Ruling on Environmental Refugees 

There can be no words to describe the humiliation faced by those who are forced to leave their homes, they wish they never had to leave and the feeling of disappointment and devastation when refused a place in the land they seek refuge. Even nations that are not parties to the refugee convention are bound by the principle of ‘non-refoulement’ under customary international law, but refugees who have lost their land and livelihood in their birth nation have no redressal under international law owing to the fact that there is no fixed and universal definition for the term “environmental refugees”. The UN’s ruling has rightly brought these categories of refugees within the purview of standard definition of “refugee” under international law and has granted legitimacy to claims for asylum based on environmental factors including loss of habitat due to sea level rise and loss of livelihoods due to climate change impacts and frequent incidents of natural disaster. As on date, there is no clear and legal definition for the term “environmental refugee” but it finds a place in the OECD Glossary of Statistical Terms as “a person displaced owing to environmental causes, notably land loss and degradation, and natural disaster.
 

It has taken a long time for institutions to recognize the growing problem of environmental refugees at a global level. The only solution to prevent exodus of environmental refugees from Small Island Nations, Pacific Islands and countries that are losing their habitable land to sea level rise is to curb greenhouse gas emissions and take serious steps to prevent a repeat of business-as-usual scenario in the immediate future after the pandemic recedes.


 On a similar note, but in a domestic scenario, the COVID-19 pandemic has highlighted the underlying weaknesses in publicly established systems such as primary health care infrastructure in developing nations and access to emergency services relating to health, food and shelter for the poor and underprivileged living in densely populated areas. The pandemic has brought to the forefront the government’s apathy towards the poor with total disregard to their housing comfort where social distancing, crucial to prevent the rapid spread of the corona virus has been impossible to implement. All claims by governments that PDS is a huge success need to be rejected considering the fact we witnessed scenes of huge population of migrant laborers walking hundreds of miles back to their hometowns to stave off hunger and starvation. The problems posed by migrant laborers in India during the pandemic clearly establishes the fact that they are ‘internally displaced persons’ (IDPs) with no provision to access the public distribution system for food and essential commodities in the state where they have been contributing to the economy except in their registered hometowns. Although, their migration has been voluntary and in search of employment, treating them as IDPs under the current scenario is only appropriate that grants them rights for enforcement. International law mandates that the governments of those states where such IDPs are living and working are responsible for the welfare of such populations. By permitting them to leave one state with no guarantee of fulfillment of basic necessities is violation of human rights by the that state. It is a humanitarian crisis of severe nature that India is witnessing. With this understanding, I hope the governments endeavor to put in place a system that ensures the welfare of these migrant laborers within the state they seek employment is taken care of and these invisible citizens are accounted for.

Phasing out economic recovery for the environment and climate impacts

The levels of air and water pollution across the world have seen a dip, wild life in various nations have found freedom to roam in national parks, some cities and urban areas. This is good news. We all know that it is a temporary setback as world awaits restarting of economy, hoping to rebound to business-as-usual scenario. But this respite must be consolidated by governments by revisiting the implementation of environmental and pollution norms that have been put in place to counter climate change impacts and intensify regulation before providing the impetus to restart the slumbering economy as we gear up for better economic times after the pandemic recedes. 

How the Coronavirus Pandemic is Affecting Carbon Dioxide Emissions 

Governments may tend to prioritize industries that need to be started before a total economic recovery. Transportation industry may be the first to restarted. In that event, a stringent regulation of polluting vehicles and allowing only those that have been certified as non-polluting and free of emissions to ply on the roads. Polluting industries such as leather and textiles must be permitted to reopen only if they have put in place necessary waste treatment mechanisms and also comply with requisite reporting requirements. Construction and real estate can be regulated to ensure only green buildings that meet sustainable norms are permitted to start construction. Governments need to encourage sustainable farming activities but providing sustainable transport and distribution of such produce from rural to urban areas encouraging citizens to choose such products. It is also the appropriate time to regulate manufacturing industries to ensure biodegradable and Eco-friendly packaging of products that aims to reduce the usage of plastic and unsustainable business practices. Similarly, an examination and inspection of all sectors for compliance of pollution norms prior to restarting them will go a long way in ensuring cleaner air and water for citizens. 

Carbon Emissions are falling sharply due to coronavirus. But not for long?? 

 The pandemic situation that prevails today has changed our consumption patterns to a large extent and we need to self-regulate our behavior to reduce waste, recycle and reuse products and raw materials.  Effectively we should start the cycle for circular economy. Regulatory bodies need to conduct inspections on production mechanisms, generation of waste, emission standards of all industries, mandating compliance of pollution norms at all levels within a specific time period, failing which the threat of businesses being shut down until future compliance be indicated. It is that time to ensure small and micro industries receive stimulus packages for revival with the condition that those entities that are power intensive should install standalone renewable energy units that can sustain their businesses without dependence on the main grid. 

It is also the time when the demand for power has come down substantially due to closure of businesses and related activities, but there has not been sufficient adoption of storage technology to store unused and excess power that has been generated. While, we cannot predict and expect various forms of contingencies and exigencies in our normal conduct of life and businesses, the present situation of global pandemic has highlighted the strengths and weaknesses of systems that are in place across various nations. It is time to assess them and act accordingly. This is also the right time to enforce tourism standards that address ecological concerns and sustainability of ecosystems and wildlife habitats by imparting good tourism etiquette among populations. 

Coronavirus- The positive impact on Environment and Climate Change 

The above conditions to restart businesses may seem inappropriate at a time when incomes have been brought down to nil in some businesses and unemployment levels are at the highest, but we have paused a bit for the pandemic to recede. Will it be too much to ask to hold on to the pause button a little while longer to allow our planet to breathe once again and provide a better planet to our next generation and posterity. After all, the demand is only to comply with existing pollution norms to reduce air and water pollution and make the world a better place to live after the pandemic ends.

When injunction is the norm and not an exception....

The Southern Bench of the National Green Tribunal in a matter relating to a plea to grant stay the celebration of Mahashivarathri at the foothills of the Velliangiri hills located at the elephant corridor. The petitioner believed that lakhs will attend the celebrations disturbing the peaceful existence of wild animals in the area leading to an increase in man-animal conflict in the region. It is indeed surprising that the Tribunal failed to grant a stay of the celebrations even on the preliminary assessment of facts that the venue for conducting the celebrations was indeed within an eco-sensitive region and that there are several petitions against the Isha Foundation pending before various judicial courts in this matter filed every year when the celebrations are due. The plea by the counsel for Isha Foundation that the High Court is seized of the matter and that requisite permissions were already obtained sounds hollow and does not hold water. There is no gainsaying that every year political bigwigs from the ruling party attend the celebrations giving the Foundation much needed publicity. It is therefore, not surprising that there is not a single order against the erring Isha Foundation and the plight of tribals have been sidelined to please the so-called God Man. So, is this dereliction of duty on the part of the National Green Tribunal subsequent to political pressure to connive the illegal activities of the Foundation? It is not clear as to why the lock and seal notice issued against the Foundation not acted upon since 2012, despite state government taking corrective measures against the Foundation. Why was no injunction granted against the construction of 112 feet idol of Lord Shiva on wetlands presumably owned by the Foundation? How did the Foundation even obtain title over land in reserved forest and hill areas? Courts cannot gloss over permissions obtained but examine whether such permissions were within the law and legally appropriate under laws relating to environment protection and forest land use and conversion? Who were the authorities who granted permission for such unhindered construction near the foothills of Velliangiri? What kind of permissions were given to the Foundation? If posed a question, I am sure Lord Shiva himself would favour the poor tribals who have been granted pattas, over Isha Foundation and its founder. Is the Foundation being protected by the ruling party due to its Hindutva agenda while it overlooks the impact of such unrestrained construction activity in an eco-sensitive area despite protests by tribals and poor people who depend on forests for their livelihood. It is sad that the court was not moved by the plight of the petitioner named Muthamma, a poor tribal woman who sought its intervention? Does it also mean that all those petitioners against the Foundation were unable to establish a prima facie case for injunction against the Foundation and that all petitions against the Foundation did not bear merit for the courts to intervene? Courts must also endeavour to establish the fact as to who supports the Foundation with muscle and money against the genuine grievance of indigenous communities living around the region.