Realism is one of the main theories to approach international principles in
relation to different states. Realism gives a theoretical outlook to mind on the
independent status of some entities to deal with the principle of international
law. International environmental policies are the most famous and useful in
This gives a basic idea of preserving our environment and the theory of realism
helps to achieve the same by providing correct judicial decisions by the
judiciary of India. This project is going to deal with the role of realism in
the application of an international environmental principle in India.
International environmental law addresses population, biodiversity, climate
change, ozone depletion, and dangerous and hazardous substances. The ability to
grasp the environmental implications of numerous natural events as well as human
activities have improved as research and technology has progressed.
Multilateral environmental accords are increasing at an exponential rate,
encompassing a wide range of issues such as freshwater depletion, ozone
depletion, climate change, biodiversity loss, toxic and hazardous products, and
river contamination. India has always been a proponent of international
environmental standards, frequently taking the lead among developing countries.
Furthermore, India has a strong track record of ratifying important
environmental treaties and has an active NGO community involved in international
The development of international environmental law has yielded a mixed bag of
results. While some treaties have been successful in achieving the desired
goals, it explains the origins of the treaty and the key concepts that underpin
it. Despite this level of internationalism, domestic environmental regulations
continue to be focused on day-to-day issues such as local pollution and resource
depletion. In a society where the problems of contaminated drinking water,
depleted forests, and broad exposure to harmful substances pose direct dangers
to human existence and health, such localism is unavoidable, if not vital.
The judge-made law of environmental protection in India accepts international
principles that are generally viewed with caution in other common law
jurisdictions. The theory of realism in jurisprudence helps the judiciary to
take judicial decisions for safeguarding the people of the country in the most
A Brief Discussion On Realism And International Environmental Policy
Meaning and Concept of Realism:
Legal Realism is a theory that all law derives from already existing social
interests and public policy. Judges, according to this idea, evaluate social
interest and public policy, as well as abstract rules. In India, the courts use
realism largely to establish the supremacy of the Constitution in order to
promote constitutional ideas rather than to establish their own supremacy.
According to Llewellyn, realism, or the realist school, is not a school of law.
It's better to refer to it as Sociological Jurisprudence. Not only that but it's
also known as the functional school's left wing. There is a slight distinction
between these two items in that they are less concerned with the goals. This
school is known as the realist because it focuses on an approach that studies
law as it exists in the real world and the consequences that it will have in the
The naturalist philosophy of law is known as legal realism. "It is of the
opinion that jurisprudence should follow the methodology of natural science,
i.e., relying on empirical data. In truth, legal realism states that the law
cannot be separated from its execution and that it is difficult to interpret.
This demonstrates the importance of establishing the substance of the law in
sectors such as legal decisions issued by judges and their deference or
rejection to earlier precedent and the doctrine to final judgment by identifying
the considerations inherent in judicial decision-making." As a result, the law
was inextricably linked to human behavior and the ability of judges to decide
the law, rather than being in an abstract sphere with universal laws or
"Legal realists argue that these cultures are historical and/or natural concepts
that should be addressed by a variety of psychological and sociocultural
hypotheses, perceiving legal concepts as being determined by human behavior,
which should be empirically evaluated rather than theoretical legal
assumptions." As a result, most forms of legal positivism are at odds with legal
realism. Legal realism arose in response to late-nineteenth-century and
early-twentieth-century legal formalism, which became the dominant style for
much of the early twentieth century. Its pessimistic optimism succeeded in
casting doubt on formalistic assumptions that judges would always do what they
There are various things that come to mind while discussing the reasons that
have had a significant impact on the establishment of this school or realistic
approach. To begin with, this system represents the ideological impact of
pragmatic philosophy, which began in America. The American School of
Jurisprudence gave this school accreditation, and it has evolved since then.
Second, the most essential component of its genesis appears to be related to the
country's judicial organization.
The American Supreme Court is said to be the highest court in the country, where
final decisions are made and followed. The judges of the lower courts are
appointed, and they are influenced to make irrelevant or undervalued decisions,
for which they have no public backing. The creation of a state judiciary has
resulted in an enormous growth in the number of judgments and laws. All of these
approaches have caused jurists to concentrate solely on the courts and not on
the law. Therefore, the school of realism is enacted by them.
Concept of International Environmental Principles:
International Environmental Law addresses the aim to manage pollution and the
depletion of natural resources within a framework of sustainable development.
"It's a subset of public international law, which is a body of legislation
devised by states for the purpose of resolving disputes between them.
Population, biodiversity, climate change, ozone depletion, toxic and hazardous
compounds, air, land, sea, and transboundary water pollution, marine resource
conservation, desertification, and nuclear damage are all covered by IEL."
The following are two key international environmental treaties:
- The Declaration of the United Nations Conference on the Human
This declaration was a huge step forward in considering the worldwide human
impact on the environment, "as well as an international effort to address
the challenge of maintaining and improving the human environment. Rather
than precise normative stances, the Stockholm Declaration advocates for
broad environmental policy goals and objectives."
- The Rio Declaration on Environment and Development
It was a short document produced at the United Nations Conference on
Environment and Development (UNCED), often known as the Rio Earth Summit, in
1992. The Rio Declaration is a set of 27 principles designed to guide future
global sustainable development.
Principles of International Environmental Law in India:
- Principles of Sovereignty and Responsibility:
The development of international environmental law has been based on two
opposing principles. The first principle is that states have exclusive
control over their natural resources. Second, states must avoid harming the
environment. According to the Rio Declaration of 1992, "states have the
sovereign right to utilize their own resources in accordance with their own
environmental and development objectives, in conformity with international
law principles, the obligation to guarantee that activities under their
authority or control do not harm the environment of neighboring states or
places outside their own jurisdiction."
Therefore, in locations beyond state jurisdiction, such as the high seas,
the appropriate notion is that of humanity's shared heritage, rather than
- The Precautionary Principle:
The burden of proof is shifted since scientific certainty generally comes
later for politicians and attorneys to safeguard against environmental
hazards. Waiting for scientific verification of the impact of pollutants
released into the environment could result in irreparable environmental
damage and human misery. This idea is enshrined in the Rio Declaration,
which states that where serious or irreversible damage is threatened, a lack
of complete scientific confidence shall not be used as a justification for
delaying cost-effective steps to avert environmental deterioration.
- The Prevention Principle:
The duty to avoid environmental harm should be distinguished from the idea
of pollution prevention. A state is now required to prevent damage within
its own jurisdiction under this new norm. Preventing environmental damage is
less expensive, easier, and environmentally hazardous than responding to
damage that has already occurred. The preventative principle underpins
legislation governing the generation, transportation, treatment, storage,
and disposal of hazardous waste, as well as pesticide use regulations.
- The Polluters Pay Principle:
In environmental law, the "polluter pays" premise has long been a popular
concept. A state that violates international law is required to cease
damaging actions that may harm the environment and to improve the situation
that existed before wrongful conduct. According to this theory, if the state
is unable to restore the condition owing to an impossibility, the state must
compensate the individual. As a result, international environmental law is
inconclusive and ambiguous when it comes to the level of care when comes to
environmental duties. The absolute culpability for certain activities may be
regulated by such treaties.
- Sustainable Development Principle:
According to the Brundtland Report 1987, sustainable development is defined
as the development that meets current demands without jeopardizing the
future generation's ability to satisfy their own needs. In many
circumstances, the idea of sustainable development is difficult to apply,
partly because the findings of long-term sustainability evaluations are
dependent on the specific resources under evaluation.
Role Of Realism In The Application Of International Environmental Policy In India
"The three main sources of international environmental law are international
treaties, customary international law, and judicial decisions of international
courts." Customary international laws are unwritten rules that states have
followed for a long time. It includes notifying a neighboring country about
major accidents that could have a negative impact on the environment. The
International Court of Justice or the International Tribunal for the Law of the
Seas makes decisions that define international environmental law.
"India is one of the most vulnerable countries to climate change. Agriculture is
the primary source of income for half of India's population. After China and the
United States, India is now the third greatest emitter of greenhouse gases.
Between 2008 and 2035, India's yearly carbon dioxide emissions are expected to
The energy sector accounts for 8% of net carbon dioxide emissions, whereas
industry accounts for 22%, agriculture for 17%, and the waste sector accounts
for 3% of net CO2. Climate change and energy are now the focus of global
attention at the municipal, state, and national levels.
Previously, India was not responsible for greenhouse gas emissions because it
had a low per capita emission rate; however, India now plays a key role in
international negotiations and must implement a multifaceted policy to develop
clean energy sources, improve energy efficiency, and prepare for climate change
Role of the Judiciary in the Application of International Environmental
In India, the principles under which environmental laws operate are formed
through judicial procedures in the Supreme Court and the High Courts. The court
has played a significant role in interpreting legislation and establishing
principles for interpreting Indian statutes and the Constitution.
The Supreme Court's decisions and directives address a wide range of topics,
including air, water, solid waste, and hazardous waste. The Supreme Court has
ordered the closure of polluting industries and damaging aqua farms, as well as
the halting of unlawful mining activities, the development of cleaner motor
fuel, and the preservation of forests and architectural masterpieces like the
M.C Mehta vs Union of India, 1986:
In this case, "the Supreme court established the principle of absolute liability
for compensating victims of pollution created by hazardous or intrinsically
harmful industries. The court stated that even if any person took necessary
precautions and followed all the safety steps after getting involved in any
harmful activities, that person will still be held liable for the act." This
court held the defendant liable.
Ganesh Wood Products vs State of Himachal Pradesh,1995:
In this case, the judges broadened the concept of forest and prohibited all
non-forest activities on forest land without prior approval from the federal
government. It further said that each state should organize an expert committee
to identify forests and dispose of timber.
M.C Mehta vs Kamal Nath, 1996:
In this case, "an attempt was made to divert the flow of the river away from a
motel's arguments facilities. The Supreme Court stepped in and acknowledged the
Public Trust Doctrine, which states that governments have a responsibility to
protect and conserve natural resources such as rivers, lakes, forests, and other
MC Mehta vs Union of India, 1997:
The Supreme Court ordered that coal and coke-based companies in Taj Trapezium (TTZ)
that were causing damage to Taj to be converted to natural gas or transferred
outside TTZ. The Court ruled that 292 industries in Agra must switch to natural
gas as an industrial fuel within a set time frame or cease operations and
relocate. From April 30, 1997, industries that have not applied for gas or
relocated must stop using coke/coal. In accordance with the provisions of the
Agra Master Plan, shifting industries will be provided incentives.
Union Carbide Corporation vs Union of India, 1990:
In this case, "the supreme court made a compromise between the UCC and the
Government of India. UCC agreed to pay $470 million in full and final settlement
of all past, present, and future claims stemming from the Bhopal disaster under
the terms of the settlement. In addition to facilitating the agreement, the
Supreme Court used its exceptional authority to end all civil, criminal, and
contempt of court procedures stemming from the Bhopal tragedy. The court ruled
that if the settlement fund is depleted, the Union of India must make up the
The validity and under the Bhopal Act (allowing for the registration and
processing of claims) and the subsequent classification of the victims were also
supported in review petitions filed under Art.137 and writ petitions filed under
Art.32 of the Indian Constitution.
Vellore Citizens Welfare Forum vs Union of India:
In this case, the Supreme court gave the landmark judgment. The court
adopted the principle of sustainable development "as a balancing concept,
rejecting the old notion that development and environmental protection cannot
coexist. The apex court stated that sustainable development has now become
accepted as a viable concept to eradicate poverty and improve the quality of
human life while living within the carrying capacity of the supporting
ecosystem." Thus, pollution caused by industrialization must be proportional to
our ecosystem's carrying capacity.
A Critical Analysis:
The court has played an important role in interpreting laws and paying down
principles with the help of realism, which shows the direct role of realism in
the Indian judiciary.
The cases which are discussed above show the role of realism in each case. Every
case shows how the judges have chosen the decision for the betterment of the
environment and people living in the country in the context of applying realism
theory. As the realism theory's aim is to guide judges in evaluating social
interest and public policy with abstract rules, it has been done in each case.
In India, the judge-made environmental protection law accepts international
principles that are often viewed with caution in other common law jurisdictions.
Indian courts have incorporated the polluter pays principle, the precautionary
principle, and the concept of sustainable development into Indian law. These
advancements raise crucial theoretical and practical issues. This also shows the
scope of international law applicability in India
Judiciary played their role very effectively by interpreting and applying
abstract rules with realism i.e., "the law was inextricably linked to human
behavior and guided the judges to decide rather than being in an abstract sphere
on universal laws or principles."
This role of realism in the application of international environmental law
principles in the Indian legal system shows the power of the judiciary in India
to implying the rules and regulations for the betterment of people around them
and to save the environment.
Countries are currently changing their economies, which is causing difficulties
to be shifted toward sustainable development. It also relies on enhancing the
implementation of its environmental policies and the integration of the
environment to achieve its economic and environmental goals.
Strengthening human and budgetary resources, as well as reviewing their
structure, is always advised in order to better integrate into government
operations. To make it easier to enforce and reinforce the accountability system
for all levels of government and industry, current legislation and regulation
must be simplified.
- Legal Desire, https://legaldesire.com/ (last visited Nov 10, 2021)
- CGSRS, http://cgsrs.org/publications/30 (Nov 13, 2015)
- Vinay Vaish & Hitendra Mehta, Environment Laws in India, MONDAQ (Aug 31,
- Pratyush Pandey, Principles of International Environmental Law, Law
Times Journal (Nov 10, 2021, 19:06 PM) https://lawtimesjournal.in/
- 1987 AIR 1086
- 1996 AIR 149, 1955 SCC (6) 363
- (1997) 1 SCC 388
- (1998) 9 SCC 93
- 1992 AIR 248
- (1996) 5 SCC 647
- Aastha Verma, International laws for environmental protection and role
of the judiciary in India, ipleaders (Sept 22, 2021), https://blog.ipleaders.in/