Jindal Global Law Review


VOLUME 6, ISSUE 1, 2015

Issue Editors: Nupur Chowdhury, Els Reynaers

Editor’s Foreword (PDF)


1. Comparative Environmental Constitutionalism
    Erin Daly and James R. May
     Article (PDF) | Abstract

As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the environment for its own sake or protecting it as a human right, whereas constitutionalism tends to integrate the two approaches. Concluding that international protection presents problems of articulation and enforcement, we examine the arguments for protection of environmental rights at the level of national constitutionalism. Lastly, we argue that engaging in comparative constitutionalism is a necessary component of understanding the envisioned reach and inherent limitations of environmental constitutionalism.
Daly, E. & May, J.R. Jindal Global Law Review (2015) 6: 9, https://doi.org/10.1007/s41020-015-0001-8


2. Access and benefit sharing: Issues and experiences from India
     Balakrishna Pisupati
     Article (PDF) | Abstract

With the Nagoya Protocol on Access and Benefit Sharing (ABS) coming into force on 12th October 2014, national and global debates on ABS shifted towards implementation of this new and challenging international framework at national levels. The time and energy spent on negotiating the framework and its adoption in 2010 by the Conference of Parties to the Convention on Biological Diversity (CBD) would now be reflected in the manner by which countries design their ABS frameworks considering options ranging from administrative to legal regimes. India is one of the few countries that had legislated a framework to deal with ABS in 2002. However, the implementation experience has been uneven and complex. This paper will review the state of play with regard to the Nagoya Protocol on ABS and the way India is responding to the implementation of the Protocol besides addressing challenges of implementing complimentary international obligations such as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and others.
Pisupati, B. Jindal Global Law Review (2015) 6: 31. https://doi.org/10.1007/s41020-015-0007-2


3. Sustainable development in EU law: Still a long way to go
     Nicolas de Sadeleer
     Article (PDF) | Abstract

One of the European Union’s fundamental objectives is sustainable development. It has been enshrined in various provisions of the founding treaties and is encapsulated in different regulatory schemes. While significant uncertainties remain regarding its meaning, it is doubtless that sustainable development is a normative concept rather than a mere policy guideline. That being said, the gap between the legal and political recognitions of sustainable development and the numerous EU policies that are unable to revert unsustainable trends is widening. Whether the concept is likely to add teeth to environmental policy remains to be seen.
de Sadeleer, N. Jindal Global Law Review (2015) 6: 39. https://doi.org/10.1007/s41020-015-0009-0


4. Balancing of competing rights through sustainable development: Role of Indian judiciary
     Arindam Basu and Uday Shankar
     Article (PDF) | Abstract

Sustainable development underlines strong bias for economic development and essentially promotes an idea that professes salvation by technology. Careful research has already revealed that this prophesy stands on a shaky and uncertain ground. The institutionalisation of the concept of sustainable development has been employed to forge a balance between the need to live within ecological limits and the agenda of progress. The Apex Court cemented the concept into a right framework by reading it as part of ‘right to life’ under the Constitution. This article, therefore, explores the role of judiciary, particularly in balancing competing rights between development and environment while using sustainable development as principal decisive factor. This article explores the juridification of ‘sustainable development’ in the Indian legal landscape. Further, it attempts to identify judicial intervention in different phases from introducing the concept to further cementing it in the fabric of environmental jurisprudence in order to draw a balance between development and environment. In conclusion, it enjoins immense trust on the judiciary in balancing the competing interest by progressive application of the concept of sustainable development in the backdrop of new-age environmental challenges.
Basu, A. & Shankar, U. Jindal Global Law Review (2015) 6: 61. https://doi.org/10.1007/s41020-015-0003-6


5. The honeymoon is over: An assessment of judicial activism in environmental cases in Sri Lanka
      Naazima Kamardeen
      Article (PDF) | Abstract

India witnessed in the 1980s and 1990s, a glorious period of judicial activism that achieved environmental justice. Sri Lanka was also influenced by this, and the judiciary moved away from its usual conservatism and utilized several tools to arrive at environmental justice. However, with the gradual change in the composition of the courts, and the surrounding political factors, judicial activism began to be altered. The denial of the relevance of international law even as soft law was perhaps the starting point. Contempt of court was also used aggressively by the court, and soured the public’s opinion of what judicial activism should encompass. This paper analyses the reasons for the decline of judicial activism in Sri Lanka. It proposes that alternative paths (such as fundamental rights, writ and other remedies) are not always reliable as they are not environmental remedies per se, and that proper and effective environmental laws and regulations are the only means by which a nation could hope to achieve environmental justice for all. Judicial activism should be the exception, and not the norm, in this regard.
Kamardeen, N. Jindal Global Law Review (2015) 6: 73. https://doi.org/10.1007/s41020-015-0010-7


6. Odysseys of Vedanta and POSCO in Odisha: An Enviro-Legal Critique
     Navneeta Dash
     Article (PDF) | Abstract

The article attempts to find reasons for violations of the Environmental Impact Assessment process, perpetrated by multinational companies Vedanta and POSCO in Odisha, India. Vedanta’s mining proposals led to India’s first “environmental referendum” and POSCO is scheduled to be the biggest Foreign Direct Investment in India, upon completion. Suggestions to mitigate flaws have been offered. Judicial pronouncements of the Supreme Court on Vedanta’s bauxite mining and refinery project in Niyamgiri, have been analysed. The POSCO project site in Kujanga and its proposed mining site in Khandadhar are located in highly fragile ecosystems. Hence, POSCO is facing and is scheduled to face even more opposition from the local indigenous people of those areas. The article argues that biodiversity and the laws relating to it must be attributed importance, in order to safeguard endangered flora and fauna species from extinction. Biodiversity laws per se should be effectuated to protect forests and the species living in them. The approach adopted while conserving them, should be eco-centric, not anthropocentric. Environment cannot continue being a pawn in the hands of human beings, being exploited and destroyed for human activities like mining and industrialisation at such a large scale. An equitable balance must be maintained.
Dash, N. Jindal Global Law Review (2015) 6: 93. https://doi.org/10.1007/s41020-015-0004-5


7. Regulating India’s blood-sport: An examination of the Indian Supreme Court’s decision in Animal Welfare Board of India v. A. Nagaraja
      Geetanjali Sharma and Shivam Singh
      Article (PDF) | Abstract

The recent verdict of the Indian Supreme Court (SC) banning Jallikattu, bullock cart races and ‘other such events’ has won accolades amongst several animal rights activists and environment enthusiasts. The decision blends ecocentric principles towards recognition of ‘intrinsic worth’ of animals into the Indian jurisprudence drawing its essence from several international covenants and recognised legal position on animal welfare in other jurisdictions. The case-note analyses this decision in the context of previous interpretations of the Supreme Court and the Madras High Court on this issue as well as drawing parallels from the recent cases of the International Court of Justice and the World Trade Organisation. The note then critiques the Supreme Court’s decision which instead of objectively choosing a recognised criteria of harm done to the bulls, self-assumed its own ‘standard of harm’ premised on studies of behavioural ethology presented by the Animal Welfare Board of India. Finally, the authors analyse the efficacy of the recommendations given by the SC and study whether the ideals as endorsed in its overall reasoning would align with the actual implementation of the decision on ground.
Sharma, G. & Singh, S. Jindal Global Law Review (2015) 6: 113. https://doi.org/10.1007/s41020-015-0008-1


8.The development of smart grid and the legal challenges in China
      Haifeng Deng
     Article (PDF) | Abstract

Smart grid technology has been adopted by many countries in order to reduce carbon emissions. Smart grid has become a viable clean energy option. This paper seeks to examine the nuances involved in the technology. The 5-year plans along with various center and state policies have been used to encourage the development of smart grid networks. This paper also examines how China evolved policies and laws to focus on incorporating smart grid technology. Further, this paper also examines the challenges involved in adopting the technology.
Deng, H. Jindal Global Law Review (2015) 6: 123. https://doi.org/10.1007/s41020-015-0005-4