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Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India

Published online by Cambridge University Press:  02 May 2012


This article considers fairness in international environmental law (IEL) in light of the convergence of two contemporary phenomena: the rise of social movements and the increasing power of large developing countries. These two trends will be determinative for the future of IEL. They have brought issues of fairness, equity, and justice to the forefront of contemporary IEL debates. Despite inability to adequately address issues of fairness at the international level, as demonstrated by negotiating gridlock at international summits, IEL can evolve in more equitable directions through the influence of subaltern experiences. This article examines domestic law-reform efforts of Indian social movements, focusing particularly on indigenous movements responding to extractive industries, with a view to determining international implications. The way states such as India address environment-related conflict, respond to demands for fairness, and evolve domestic understandings of inclusive and sustainable law and development will increasingly shape IEL.

INTERNATIONAL LAW AND PRACTICE: Symposium: Fairness in International Environmental Law
Copyright © Foundation of the Leiden Journal of International Law 2012

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1 The terms ‘fairness’, ‘justice’, and ‘equity’ are used interchangeably in this article. In uniformity with this symposium issue's introductory article, M. Prost and A. T. Camprubí, ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’, at footnote 3, we use the term ‘fairness’ as defined by T. Franck, Fairness in International Law and Institutions (1997), 7: ‘the fairness of international law, as of any other legal system, will be judged, first by the degree to which the rules satisfy the participants’ expectations of justifiable distribution of costs and benefits, and secondly by the extent to which the rules are made and applied in accordance with what the participants perceive as right process.’

2 Prost and Camprubí, supra note 1, at section 2.3.

3 See B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (2003).

4 Prost and Camprubí, supra note 1, at section 2.2: ‘The South is either “against” the environment or using it dishonestly as a vehicle for its distributive demands. Very little of the density, the diversity, and the evolving attitudes of the South has entered IEL's disciplinary world-view.’

5 See Mickelson, K., ‘South, North, International Environmental Law, and International Environmental Lawyers’, (2000) 11 YIEL 52Google Scholar; Najam, A., ‘Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement’, (2005) 5 International Environmental Agreements 303CrossRefGoogle Scholar.

6 Prost and Camprubí, supra note 1, at section 2.2.

7 A. Sen, Development as Freedom (1999), 267.

8 R. Barnes, Property Rights and Natural Resources (2009), 10.

9 Seoul Development Consensus for Shared Growth (G20 Seoul Summit, November 2010), available at

10 Ibid.: ‘We further believe there is no “one-size-fits-all” formula for development success and that developing countries must take the lead in designing and implementing development strategies tailored to their individual needs and circumstances.’

11 A. McHarg, B. Barton, A. Bradbrook, and L. Godden, Property and the Law in Energy and Natural Resources (2010), 6.

12 UNDP & Commission for the Legal Empowerment of the Poor, Making the Law Work for Everyone, Vol. 2 (2008), 2.

13 UNDP, Fostering Social Accountability: From Principle to Practice (2010), 8.

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22 The most widely used definition of indigenous peoples was put forward in 1986 by UN Special Rapporteur on Discrimination against Indigenous Populations, Jose Martinez Cobo: ‘Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their cultural patterns, social institutions and legal systems’; Jose Martinez Cobo, ‘Conclusions, Proposals and Recommendations’, in Study of the Problem against Indigenous Populations Vol V, UN Doc. E/CN4/Sub2, add 4 [379, 381] (1986/7); see also Paul Keal, European Conquest and the Rights of Indigenous Peoples (2003), 92.

23 UN Department of Economic and Social Affairs (UNDESA), State of the World's Indigenous Peoples (2009); L. Båge, ‘Policies and Lessons for Reaching Indigenous Peoples in Development Programs’, in 2020 Focus Brief on the World's Poor and Hungry People (2007).

24 UNDP, Human Development Report: Cultural Liberty in Today's Diverse World (2004), 92.

25 Secretariat of the UN Permanent Forum on Indigenous Issues, ‘Engaging Indigenous Peoples in Governance Processes: International Legal and Policy Frameworks for Engagement’, International Conference on Engaging Communities, Brisbane, Australia, 2005.

26 S. H. Davis, Indigenous Views of Land and the Environment (1993), 3.

27 V. Elwin, A New Deal for Tribal India (1963), 22.

28 UNDP, supra note 24, at 69.

29 A. Brysk, From Tribal Village to Global Village: Indian Rights and International Relations in Latin America (2000), 2.

30 K. Annan, ‘Statement on the International Day of the World's Indigenous People’, UN Secretariat, New York, August 2006.

31 UN GA Res. 61/295 Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/61/295 (2007).

32 UNDP, supra note 24, at 69.

33 UNDESA, supra note 23.

34 G. Barton, Empire, Forestry and the Origins of Environmentalism (2002), 19.

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37 Barton, supra note 34, at 163.

38 Ibid., at 31–3.

39 R. Kipling, The Jungle Book (1894) and The Second Jungle Book (1895).

40 Parts of this section are adapted from K. Khoday and U. Natarajan, ‘Sustainable Development as Freedom: On the Nature of International Law and Human Development’, (2010) Global Community Yearbook of International Law and Jurisprudence.

41 H. T. Buckle, History of Civilization in England, Vol. 1 (1878), 153.

42 E. B. Tylor, Primitive Culture (1874), 26.

43 P. Stein, Legal Evolution: The Story of an Idea (1980), 19.

44 V. Argyrou, Logic of Environmentalism: Anthropology, Ecology and Post-Coloniality (2005), vii.

45 J. B. Say, Cours complet d’économie politique (1828, 1843 ed.), 74.

46 McHarg et al., supra note 11, at 63.

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49 Ibid., at 10.

50 Argyrou, supra note 44, at 33.

51 M. K. Gandhi, Sarvodaya (1908). On Sarvodaya's enduring influence, see S. Narayanasamy, The Sarvodaya Movement: Gandhian Approach to Peace and Non-Violence (2003).

52 See Hettne, B. and Tamm, G., ‘The Development Strategy of Gandhian Economics’, (1976) 6 Journal of the Indian Anthropological Society 51Google Scholar; Kantowsky, D., ‘Gandhi: Coming Back from West to East’, (1984) 39 IFDA Dossier 3Google Scholar.

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54 R. Simon, ‘For Richer or Poorer’, Time Magazine, 12 November 2007, 25.

55 Argyrou, supra note 44, at 27.

56 M. Dasgupta, Indigenous Land Rights, Development, and Social Action Litigation in the Indian Supreme Court, Annual Meeting of American Sociological Association, Atlanta, 16 August 2003.

57 Argyrou, supra note 44, at 22.

58 R. Guha, How Much Should a Person Consume: Thinking through the Environment (2006), 102.

59 Ibid., at 55.

60 A. Prasad, Environmentalism and the Left: Contemporary Debates and Future Agendas in Tribal Areas (2005), 12.

61 Guha, supra note 58, at 119.

62 Simon, supra note 54, at 7.

63 See, further, G. Rist, The History of Development: From Western Origins to Global Faith (2003).

64 R. Bullard, The Quest for Environmental Justice: Human Rights and the Politics of Pollution (2005), 29.

65 UNEP, Cultural and Spiritual Values of Biodiversity (1999), 1.

66 Y. P. Anand, ‘Gandhian Ethics for a Socially Relevant Market Economy’, January 2011, RITES Journal, 91–8.

67 V. Jha, ‘Effects of India's Growth on the Global Economy and Environment’, Overseas Development Institute, 27 February 2008, available at

68 Patnaik, supra note 36.

69 See A. Prakash, Tribal Rights in Jharkand (2007) for a description of the history and emergence of Jharkhand state undertaken by UNDP to analyse options for inclusive and sustainable development in the new state.

70 Center for Science and Environment, Sharing the Wealth of Minerals (2011), 3.

71 Ibid., at 9.

72 Ibid., at 10.

73 C. Bhushan et al., Rich Lands Poor People: Is Sustainable Mining Possible? (2008), 7.

74 UNGA Res. 1803 (XVII) on Permanent Sovereignty over Natural Resources, UN Doc. A/5217 (1962).

75 Prakash, supra note 69, at 45.

76 Center for Science and Environment, supra note 70, at 4–6.

77 Ibid., at 30–1.

78 Environmental Resource Management, Sustainable Development Framework for the Mining Sector in India (2010), 4.

79 Ibid., at 37.

80 National Center for Advocacy Studies, Advocacy Update on Land Rights: Issue 18 (2005).

81 Parts of this section are adapted from Khoday, K. and Bonnitcha, J., ‘Globalization and Inclusive Governance in China and India: Foreign Investment, Land Rights and the Legal Empowerment of the Poor’, in Gehring, M. et al. (eds.), Sustainable Development in World Investment Law (2011), 481Google Scholar.

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83 P. P. Royal, ‘Do Indian SEZs Steal from the Poor?’,, 8 November 2007, available at

84 P. Parker and S. Vanka, ‘New Rules for Seizing Land’, Center for Policy Research, available at

86 Scheduled Tribes and Forest Dwellers (Recognition of Forest Rights) Act (2006).

87 Ministry of Tribal Affairs, Invitation of Views/Suggestions on the Draft Scheduled Tribes (Recognition of Forest Rights) Bill, Document No. 17014/4/2005-S&M (Pt) (2005). See also Asian Indigenous and Tribal Peoples Network, Occasional Paper on Report of the National Consultation on the Draft Forest Rights Bill (October 2005).

88 Kothari, A. and Pathak, N., ‘Forests and Tribal Rights’, (2007) IX Advocacy Internet 17Google Scholar.

90 T. Dash, ‘Early Gains from Forest Rights Act’, India Together, 21 September 2008, available at

92 Ministry of Tribal Affairs, supra note 87.

93 S. Narayan and R. Guha, ‘Tribals to Get Special Shield against Industries, SEZs’, Economic Times, 17 December 2007, available at

94 M. Sanwal, ‘Forests and the Development Debate’, Economic Times, 28 February 2011, available at

95 Sharma, R., ‘Green Courts in India: Strengthening Environmental Governance?’, (2008) 4 Law, Environment and Development Journal 50Google Scholar.

96 Tarun Bharat Sangh, Alwar v. Union of India, Supreme Court of India, Judgment of 11 October 1991, 1992 Supp (2) SCC 448.

97 Subhash Kumar v. State of Bihar, AIR 1991 SC 420.

98 M.C. Mehta v. Union of India, Supreme Court of India, Judgment of 12 May 1998, (1998) 6 SCC 60 & Judgment of 18 November 1998, (1998) 9 SCC 589; M.C. Mehta v. Union of India, Supreme Court of India, Judgment of 16 April 1999, (1999) 6 SCC 9; Murli S. Deora v. Union of India, Supreme Court of India, Judgment of 2 November 2001, (2001) 8 SCC 765.

99 A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) & Ors, Supreme Court of India, Judgment of 27 January 1999, (1999) 2 SCC 718; Mrs. Susetha v. State of T.N. & Ors., Supreme Court of India, Judgment of 8 August 2006, (2006) 6 SCC 543; Narmada Bachao Andolan v. Union of India, Supreme Court of India, Judgment of 18 October 2000, (2000) 10 SCC 664.

100 Indian Council for Enviro-Legal Action v. Union of India, Supreme Court of India, Judgment of 18 April 1996, (1996) 5 SCC 281.

101 Essar Oil Ltd v. Halar Utkarsh Samiti & Ors, Supreme Court of India, Judgment of 19 January 2004, (2004) 2 SCC 392.

102 Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212, at 252.

103 Y. Lin et al., Green Benches: Learning from Environment Courts of Other Countries?, Asian Development Bank (2009), 9.

104 ‘186th Report on Proposal to Constitute Environment Courts’, Law Commission of India, September 2003, available at

105 G. Pring and C. Pring, Greening Justice: Creating and Improving Environmental Courts and Tribunals (2009), xi.

106 Sen, supra note 7, at 18.