Protecting the sundarbans: An appraisal of national and international environmental laws

Asia Pacific Journal of Environmental Law

Volumn 13, Issue 2, 2010, Pages 249-268

  Iftekhar, M S ^a  

^a UNIVERSITY OF TASMANIA   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

AQUATIC ENVIRONMENT; BANGLADESH; BIODEGRADABILITY; BIODIVERSITY; ECOLOGICAL SPECIALIZATION; ECOSYSTEM; ENVIRONMENTAL ECONOMICS; ENVIRONMENTAL IMPACT; ENVIRONMENTAL LAW; ENVIRONMENTAL MANAGEMENT; ENVIRONMENTAL MONITORING; ENVIRONMENTAL PROTECTION; ENVIRONMENTAL SUSTAINABILITY; FOREST; FRESHWATER ENVIRONMENT; GOVERNMENT; HABITAT; HUMAN; INDIA; INHERITANCE; INTERNATIONAL RELATIONS; LAW; MANGROVE; NONHUMAN; NOTE; POLITICS; PRACTICE GUIDELINE; PRIORITY JOURNAL; PRODUCTIVITY; SUNDARBANS; UNITED KINGDOM; WETLAND; WILDLIFE; WILDLIFE CONSERVATION;

EID: 84871040167     PISSN: 13852140     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (277)

1. The Bangladesh part covers about 6017 sq km and spreads over Bagerhat, Khulna and Satkhira civil districts: see J A Canonizado and M A Hossain, Integrated Forest Management Plan for the Sundarbans Reserved Forest (Final Draft, FRMP Project, Bangladesh Forest Dept, Dhaka, 1998). The Indian part covers around 4246 sq km and spreads over South 24 Pargana and North 24 Pargana civil districts of the West Bengal State of India.
2. In the Indian part an additional 5384 sq km of adjacent land has been demarcated as a reclamation or restoration zone: see United Nations Environment Programme (UNEP), A Comparative Review of Coastal Legislation in South Asia (2003) 79.
3. Food and Agriculture Organization (FAO), Mangrove Forest Management Guidelines (Forestry Paper No 117, 1994).
4. M Vannucci (ed), Mangrove Management and Conservation: Present and Future (United Nations University Press, 2004).
5. They are committed to following the agreements reached in these treaties. For example, art 51(c) of Indian Constitution states that '[t]he State shall endeavour to ... foster respect for international law and treaty obligations in the dealings of organized peoples with one another': cited in M R Anderson, 'International Environmental Law in Indian Courts' (1998) 7(1) Review of European Community and International Environmental Law 21.
6. M J Bowman, 'International Treaties and the Protection of Birds: Part I' (1999) 11(1) Journal of Environmental Law 87.
7. D M Alongi, 'Present State and Future of the World's Mangrove Forests' (2002) 29(3) Environmental Conservation 331.
8. K R Naskar and R N Mandal, Ecology and Biodiversity of Indian Mangroves (Milton Book Company, 1999) Vols I and II.
9. M R Islam (ed), Where Land Meets the Sea: A Profile of the Coastal Zone of Bangladesh (University Press Limited, 2004).
10. A C D Barlow et al, 'Linking Monitoring and Intervention for Improved Management of Tigers in the Sundarbans of Bangladesh' (2008) 141 Biological Conservation 2032.
11. K Choudhury, M Waliuzzaman, A Nishat, The Bangladesh Sundarbans: A Photoreal Sojourn (IUCN Bangladesh, 2001).
12. See V Sampath, National Report on the Status and Development Potential of the Coastal and Marine Environment of the East Coast of India and its Living Resources (FAO and BOBLME, 2003) 10.
13. In India it was declared in 1985, covering 1330 sq km, and in Bangladesh in 1997, covering 1397 sq km: see UNEP World Conservation Monitoring Centre, Protected Areas Program, World Heritage Sites 〈http://www.unep-wcmc.org/ 〉.
14. See the Ramsar Convention on Wetlands, Annotated Ramsar List (Bangladesh) 〈http://www.ramsar.org/cda/en/ramsar-documents-list/main/ramsar/1-31-218- 4000-0〉.
15. See J C Pernatta (ed), Marine Protected Area Needs in the South Asian Region. Volume 1: Bangladesh (IUCN, 1993).
16. That is, in Bangladesh, approximately 5 million people: see M Islam and M Ahmad, Living in the Coast: Problems, Opportunities and Challenges (PDO-ICZMP, 2004) 5;
17. and in India approximately 3.76 million people: see Government of India, Ramsar COP9, National Planning Tool for the Implementation of the Ramsar Convention on Wetlands, National Report Format India (2005) 16.
18. See FAO, Report No FAO-FO--DP/BGD/84/056, Summary of the Integrated Resources Management Plan of the Sundarbans Reserved Forest (Rome, 1998) 3-59.
19. In the Bangladesh part approximately 45 000 tourists visit the forest every year. And every year around 5000 Hindu devotees assemble for a day (30 November) inside the forest to take a holy bath in the sea. There are some old relics of ancient cities and temples in the forest also: see M S N Islam, Sustainable Ecotourism - As a Practical Site Management Policy? (AH Development Publishing House, 2003).
20. S Das and N A Siddiqi, The Mangroves and Mangrove Forests of Bangladesh (1985);
21. M S Iftekhar and MR Islam, 'Degeneration of Bangladesh Sundarbans Mangroves: A Management Issue' (2004) 6(2) International Forestry Review 123.
22. A B Chaudhuri and A Choudhury, Mangroves of the Sundarbans, Volume One: India (IUCN, 1994) 139-53.
23. Ibid 201.
24. Government of India, above n 15, 31. In India, Sagar Island has been opened for human settlement: see T Balasubramanian and S Khan (eds), Mangroves of India: State of the Art Report (ENVIS, 2002) 1-102.
25. These were often supported by multilateral development banks - eg, in 1992, the World Bank invested US$425 million in aquaculture projects in India, many of which exerted negative pressure on mangroves: see A C de Fontaubert, D R Downes and T S Agardy, 'Biodiversity in the Seas: Implementing the Convention on Biological Diversity in Marine and Coastal Habitats' (1998) 10 Georgetown International Environmental Law Review 796.
26. See S J Curtis, Working Plan for the Forests of the Sundarbans Division for the Period 1931 to 1951 (Abridged ed, Bengal Government Press, 1933);
27. see also F Blasco, 'Outlines of Ecology, Botany and Forestry of the Mangals of the Indian Subcontinent' in V J Chapman (ed), Wet Coastal Ecosystems, Ecosystems of the World (Elsevier, 1977) Vol 1, 241-60.
28. B Gopal and M Chauhan, 'Biodiversity and its Conservation in the Sundarban Mangrove Ecosystem' (2006) 68 Aquatic Science 338.
29. Changes in the edaphic condition due to the reduction of freshwater flushing and nutrient supplies, as well as increased soil and water salinity, are considered the main causes of the disease: see M A Rahman, Mangrove Plant Pathology of the Sundarbans Reserved Forest in Bangladesh, Field Document No 3 of FAO/UNDP Project BGD/84/056 (Integrated Resource Development of the Sundarbans Reserved Forest, 1995).
30. For example, Rhizophora spp, Heritiera fomes, Nypa frutincans, Sonneratia spp, Aegiceras corniculatum and Kandelia kandel: see Chaudhuri and Choudhury, above n 19, 63.
31. Notable among them are the estuarine crocodile, different species of monitor, different species of turtle, Indian python, spot-billed pelican, black-headed ibis, stork, duck, gangetic river dolphin, tiger, barking deer, wild buffalo, Javan rhinoceros, swamp deer and hog deer: see Chaudhuri and Choudhury, above n 19, 137-8.
32. For example, the Javanese rhinoceros (Rhinoceros sondiacus), one-horned rhinoceros (Rhinoceros unicornis), wild buffalo (Bulbulus bulbalis), gaur (Bos gaurus), swamp deer (Cervus duvaucali) and the hog deer (Axis porcinus) at the beginning of 1900s: see N A Siddiqi, Mangrove Forestry in Bangladesh (University of Chittagong, 2001).
33. See E D Wikramanyake et al, 'An Ecology-based Method for Defining Priorities for Large Mammal Conservation: The Tiger as Case Study' (1998) 12(4) Conservation Biology 865.
34. For example, Hilsha illisha, Pangasius pangasius, Plotossus canius and Scylla serrata: see Canonizado and Hossain, above n 1.
35. M S Islam and M Haque, 'The Mangrove-based Coastal and Nearshore Fisheries of Bangladesh: Ecology, Exploitation and Management' (2004) 14 Reviews in Fish Biology and Fisheries 153.
36. S K Sarkar and A K Bhattacharya, 'Conservation of Biodiversity of the Coastal Resources of Sundarbans, Northeast India: An Integrated Approach Through Environmental Education' (2003) 47 Marine Pollution Bulletin 260.
37. Industries located in the vicinity include paper, chemicals, textiles, pharmaceuticals, shellac, leather, plastic, tyres and cycle rims: see Naskar and Mandal, above n 7.
38. It has been estimated that approximately 397 tons of domestic waste per day reaches the Sundarbans area from the Kolkata municipal area: see Sampath, above n 11, 136.
39. M M M Hossain, National Report of Bangladesh on Sustainable Management of the Bay of Bengal Large Marine Ecosystem (BOBLME, 2004) 38-40.
40. Naskar and Mandal, above n 7.
41. Sampath, above n 11, 134.
42. M Saha, S K Sarkar and B Bhattacharya, 'Interspecific Variation in Heavy Metal Body Concentrations in Biota of Sunderban Mangrove Wetland, Northeast India' (2006) 32 Environment International 203.
43. Sarkar and Bhattacharya, above n 31.
44. Balasubramanian and Khan, above n 21, 89;
45. see also S Brichieri-Colombi and R W Bradnock, 'Geopolitics, Water and Development in South Asia: Cooperative Development in the Ganges-Brahmaputra Delta' (2003) 169(1) Geographical Journal 43;
46. P Saenger, Mangrove Ecology, Silviculture and Conservation (Kluwer, 2002) 236.
47. Water Resources Planning Organization (WARPO), Options for the Ganges Dependent Area, Final Report, (2002) Vol 7, Annex F: Environment;
48. see also J I Uitto and A M Duda, 'Management of Transboundary Water Resources: Lessons from International Cooperation for Conflict Prevention' (2002) 168(4) Geographical Journal 366.
49. Chaudhuri and Choudhury, above n 19, 203;
50. see also Balasubramanian and Khan, above n 21.
51. M S Islam and M A Wahab, 'A Review on the Present Status and Management of Mangrove Wetland Habitat Resources in Bangladesh with Emphasis on Mangrove Fisheries and Aquaculture' (2005) 542 Hydrobiologia 165.
52. There is a strong relationship between tigers' man-eating behaviour and salinity levels: see Chaudhuri and Choudhury, above n 19, 130-1.
53. The coastal zones of these countries are projected as the worst victims of climate change due to multiple effects: rising sea levels will contribute to enhanced inundation and salinity intrusion; rising winter temperatures will increase evapo-transpiration losses; increased rainfall intensity will cause enhanced erosion upstream; high intensity cyclonic storm surges are also likely to cause physical damage to the forest; and, due to submergence of a large section of coastal landmass, population pressure on the existing land (including the remaining forest area) will increase tremendously. For details, see S Agrawal et al, Development and Climate Change in Bangladesh: Focus on Coastal Flooding and Sundarbans (OECD, 2003).
54. A Agrawal, Environmentality: Technologies of Government and the Making of Subjects (Duke University Press, 2005) 32-230.
55. N A Khan, A Political Economy of Forest Resource Use: Case Studies of Social Forestry in Bangladesh (Ashgate, 1998) 37-46.
56. R A Chowdhury and I Ahmed, 'History of Forest Management' in Z Hussain and G Acharya (eds), Mangroves of the Sundarbans, Volume Two: Bangladesh (IUCN, 1994) 155-80.
57. Chaudhuri and Choudhury, above n 19, 140-42.
58. Chowdhury and Ahmed, above n 47.
59. Ibid.
60. J F Richards and E P Flint, 'The Expanding Frontier of Cultivation in the Sundarbans' in J Seidensticker, R Kurin and A K Townsend (eds), The Commons in South Asia: Societal Pressure and Environmental Integrity in the Sundarbans (Smithsonian Institution, 1991) 〈http://www.sundarbans.org/ The%20Commons%20in%20South%20Asia%20Conference%20Proceedings.pdf〉.
61. Chowdhury and Ahmed, above n 47.
62. Ibid.
63. See Circular No 22F, dated 19 October 1894. See also J K Choudhury, 'Policy, Acts and Regulations' in Hussain and Acharya, above n 47.
64. In fact, the main aim of this policy was to utilise the forest for revenue maximisation. Primacy was given to agriculture: see S K Ahluwalia, Indian Forestry Scene (International Book Distributors, 1992);
65. see also R S Shukla, Forestry for Tribal Development (Wheeler, 2000).
66. J K Choudhury, 'National Forest Policy Review - Bangladesh' in T Enters, M Qiang and R N Leslie (eds), An Overview of Forest Policies in Asia (FAO, 2003) 15-48.
67. M L Rao, Conservation Through Forest Conservation Act (1998) 94-7.
68. M M Mustafa, A Review of Forest Policy Trends in Bangladesh - Bangladesh Forest Policy Trends, Policy Trend Report (2002) 114-21.
69. Indian Institute of Forest Management (IIFM), 'National Forest Policy Review - India' in Enters, Qiang and Leslie, above n 56, 111-59.
70. J Razzaque, Public Interest in Environmental Litigation in India, Pakistan and Bangladesh (Walters Kluwer, 2004) 73.
71. J Razzaque, 'Case Law Analysis: Application of Public Trust Doctrine in Indian Environmental Cases' (2001) 13(2) Journal of Environmental Law 231.
72. Ibid.
73. J F Richards and E P Flint, 'The Expanding Frontier of Cultivation in the Sundarbans' in J Seidensticker, R Kurin and A K Townsend (eds), The Commons in South Asia: Societal Pressure and Environmental Integrity in the Sundarbans (Smithsonian Institution, 1991) 〈http://www.sundarbans.org/ The%20Commons%20in%20South%20Asia%20Conference%20Proceedings.pdf〉.
74. Chowdhury and Ahmed, above n 47.
75. Ibid.
76. See Circular No 22F, dated 19 October 1894. See also J K Choudhury, 'Policy, Acts and Regulations' in Hussain and Acharya, above n 47.
77. In fact, the main aim of this policy was to utilise the forest for revenue maximisation. Primacy was given to agriculture: see S K Ahluwalia, Indian Forestry Scene (International Book Distributors, 1992);
78. see also R S Shukla, Forestry for Tribal Development (Wheeler, 2000).
79. J K Choudhury, 'National Forest Policy Review - Bangladesh' in T Enters, M Qiang and R N Leslie (eds), An Overview of Forest Policies in Asia (FAO, 2003) 15-48.
80. M L Rao, Conservation Through Forest Conservation Act (1998) 94-7.
81. M M Mustafa, A Review of Forest Policy Trends in Bangladesh - Bangladesh Forest Policy Trends, Policy Trend Report (2002) 114-21.
82. Indian Institute of Forest Management (IIFM), 'National Forest Policy Review - India' in Enters, Qiang and Leslie, above n 56, 111-59.
83. J Razzaque, Public Interest in Environmental Litigation in India, Pakistan and Bangladesh (Walters Kluwer, 2004) 73.
84. J Razzaque, 'Case Law Analysis: Application of Public Trust Doctrine in Indian Environmental Cases' (2001) 13(2) Journal of Environmental Law 231.
85. S Divan and A Rosencracz, Environmental Law and Policy in India: Cases, Materials and Statutes (2nd ed, Oxford University Press, 2001) 289.
86. However, forest policies are not legally binding: see C Singh, India's Forest Policy and Forest Laws (Natraj, 2000) 85.
87. Act No 53 of 1972. Salient features are: formation of a Wildlife Advisory Board (ch II); protection of a number of animals and birds listed in the schedules to the Act and to a number of plants as deemed necessary (ch III); and provision for the creation of sanctuaries, national parks and closed areas for the purpose of protecting, propagating or developing wildlife (ch IV) 〈http://envfor.nic.in/legis/legis.html#〉
88. See UNEP World Conservation Monitoring Centre, above n 12.
89. Chaudhuri and Choudhury, above n 19, 193-4.
90. See Amendment Act No 42 of 1976; see also Divan and Rosencracz, above n 62, 291.
91. Act No 69 of 1980 〈http://envfor.nic.in/legis/legis.html#R〉.
92. Act No 29 of 1986. Salient features are: sets the maximum allowable limits of various environmental pollutants (s 6); sets penalties for offences by companies (s 16) and government departments (s 17). However, indemnity has been provided to the government or any officer or other employee of the government, or any authority constituted under the Act (s 18) 〈http://envfor.nic.in/ legis/legis.html#R〉. In the same year a National Mangrove Committee was formed: see
93. Balasubramanian and Khan, above n 21.
94. IIFM, above n 59, 111-59.
95. Ibid 129.
96. Resolution No 8556-For (15 November 1991) covering Sundarbans 〈http://www.iifm.org/databank/jfm/wbfdres.html〉
97. Resolution No 3841-For/FR/0/11M-7/95 (Calcutta, 26 June 1996) Forest Department, Government of West Bengal 〈http://www.iifm.org/databank/jfm/ wbfdres.html〉〉
98. Chaudhuri and Choudhury, above n 19, 189-93.
99. Annexure I, Coastal Regulation Zone Notification (1991) 〈http://envfor.nic.in/legis/legis.html#R〉.
100. T N Godavarman Thirumulkap v Union of India, AIR (1997) SC 1228.
101. See Divan and Rosencracz, above n 62, 294-308;
102. see also R Dutta, 'Supreme Court's Response to Deforestation in India: Reinterpreting the Forest (Conservation) Act' in N Aggarwal (ed), Social Auditing of Environmental Laws in India (New Century, 2003) 130-5.
103. S Jagannath v Union of India, AIR (1997) SC811.
104. See Divan and Rosencracz, above n 62, 490-95.
105. See Sampath, above n 11, 34.
106. Act No 18 of 2003. Salient features are: the regulation of access to biological diversity (ch II); establishment of the National Biodiversity Authority (ch III), the State Biodiversity Board (ch VI), and the Biodiversity Management Committee (ch X); control of certain actions detrimental to biodiversity (s 24); development of national plans and strategies to conserve biodiversity (s 36); and the declaration of certain areas as Biodiversity Heritage Sites (s 37) 〈http://envfor.nic.in/legis/legis.html#R〉.
107. For example, the Water (Prevention and Control of Pollution) Act 1974 (No 6 of 1974)
108. and the Water (Prevention and Control of Pollution) Cess Act 1977 (No 36 of 1977) 〈http://envfor.nic.in/legis/legis.html#R〉.
109. Divan and Rosencracz, above n 62, 291.
110. Razzaque, above n 60, 106-7.
111. Choudhury, above n 54, 15-48.
112. Some of the main features of this Act are: the government has power to declare any forest or wasteland, or any land suitable for afforestation, as reserve forests (s 3) or protected forests (s 29); de-reservation (s 27); prohibition of fresh clearing or damaging of reserved or protected forests and their wildlife (s 26); formation of village forests by assigning rights to a community or initiating social forestry programs (ss 28 and 28A); and indemnity of public servants for acts done in good faith under this Act (s 74) 〈http://www.bforest.gov.bd/act.php〉.
113. In 2004 the Social Forestry Rule was adopted: see N Muhammed et al, 'Reckoning Social Forestry in Bangladesh: Policy and Plan versus Implementation' (2005) 78(4) Forestry 373.
114. Act No XVII of 1973. Salient features are: emphasis on the protection of wildlife and empowerment of the forest officials to prosecute violators of the provisions of this Act; the government can declare any area as a wildlife sanctuary or game reserve or national park; permits hunting of species described in sch 1; prohibits the hunting and trapping of any of the animals described in sch 3 (threatened and endangered species); possession of wildlife materials (trophies) described in sch 2 requires a certificate from the Forest Department; man-eating tigers cannot be killed without a permit from the Chief Warden; forest officials can arrest any person without a warrant for violating the provisions of this Act and/or rules framed thereunder; high-ranking forest officials can compound some of the offences committed under this Act upon realisation of a fine.
115. See Islam and Wahab, above n 42.
116. The Act is currently under revision as the Wildlife Conservation Act 2010.
117. S S Ali, 'Conservation of Faunal Resources' in Z Hussain and G Acharya (eds), above n 47, 133-44.
118. Government of Bangladesh, Third National Report - Submitted by Bangladesh to the Convention of Biological Diversity Secretariat (2005) 9 〈http://www.biodiv.org/reports/list.aspx〉.
119. Choudhury, above n 54, 15-48.
120. The main features are: increased forest cover to 20 per cent of the total land area by 2015; maintenance of the ecological balance and aim to attain self-sufficiency in forest produce; extension of afforestation in village areas; involvement of NGOs and horticultural institutions in planting on marginal lands; encouragement of wood-based small industries and continuation of the log export ban; and encouragement of people's participation and raising of awareness. See Choudhury, above n 54, 28.
121. Act No 1 of 1995. Salient features are: establishment of Department of Environment (s 3) for conservation of the environment; improvement of environmental standards and control and mitigation of environmental pollution (s 4); declaration of ecological critical areas (s 5); and remedial measures undertaken for injury to ecosystem caused by a person or group of persons (s 7) 〈http://www.moef.gov.bd/〉.
122. Environment Conservation Rules 1997, s 3 〈http://www.moef.gov.bd/ 〉.
123. Environment Conservation Rules, 1997, s 7.
124. See Government of Bangladesh, above n 87.
125. See 〈http://www.moef.gov.bd/〉.
126. Some other laws also influence conservation of the forest such as the State Acquisition and Tenancy Act 1950 (SAT);
127. the Acquisition of Wasteland Act 1950;
128. the Protection and Conservation of Fish Act 1950;
129. the Bangladesh Private Forest Act 1959 (PFA);
130. the Social Forestry (Amended) Rules 2008;
131. and the Brick Burning (Control) (Amendment) Act 2001.
132. See also Islam and Wahab, above n 42.
133. The conflict in sharing the Ganges water at Farakka has continued for about four decades and concerns lack of water for Bangladesh because India uses most of it. It has been observed that during formulation of the agreement, India behaved according to the 'Harmon Doctrine' while Bangladesh adopted a legal attitude advocating negotiation and mediation: see N Kilot, D Shmueli and U Shamir, 'Institutions for Management of Transboundary Water Resources: Their Nature, Characteristics and Shortcomings' (2001) 3 Water Policy 229. However, the dispute over the Farakka barrage often overshadows the larger scale withdrawal of water upstream of the dam for irrigation and industrial uses: see
134. B Crow and N Singh, 'Impediments and Innovation in International Rivers: The Water of South Asia' (2000) 28(11) World Development 1907. Therefore there is considerable apprehension that the treaty might not be fully effective in solving the water-sharing problem.
135. South Asian Association for Regional Cooperation 〈http://www.saarc- sec.org/〉.
136. This is not uncommon. As Ekroos has observed, in Europe 'as traditional forest law dealt with logging related issues ... the new global and European approach to the forest is heavily emphasized with matters such as biodiversity and climate change': see A Ekroos, 'Forests and the Environment-Legislation and Policy of the EU' (2005) European Environmental Law Review 44.
137. P van Heijnsbergen, International Legal Protection of Wild Flora and Fauna (IOS Press, 1997) 232-3.
138. It has been observed that the economic growth has been attained at the expense of natural capital. In fact, the average person of these countries has become poorer over the past three decades due to environmental degradation: P Dasgupta, 'Is Contemporary Economic Development Sustainable?' (2002) 31(4) Ambio 269.
139. In other words, they are suffering from the 'HIPPO' (Habitat destruction, Invasive species, Pollution, Population and Over-harvesting) phenomenon: see J Chen, 'Webs of Life: Biodiversity Conservation as a Species of Information Policy' (2004) 89 Iowa Law Review 530.
140. Government of India, above n 15.
141. C Shine and C de Klemm, Wetlands, Water and the Law: Using Law to Advance Wetland Conservation and Wise Use (IUCN, 1999) 13-25.
142. Ibid 61.
143. This is not uncommon. Even in the US it has been observed that the adopted definition of wetland excluded the animals that use the wetland: see Beth L Kruchek, 'Extending Wetlands Protection under the Ramsar Treaty's Wise Use Obligation' (2003) 20 Arizona Journal of International and Comparative Law 425.
144. The US Supreme Court once (in 1978) observed that Congress established national forests for only two purposes - '[t]o conserve the waterflows and to furnish a continuous supply of timber for the people': cited in R Breazeale, 'Is Something Wrong with the National Forest Management Act?' (2001) 21 Journal of Land Resources and Environmental Law 323.
145. Shine and de Klemm, above n 102, 179.
146. Chen, above n 100, 549;
147. see also Shine and de Klemm, above n 102, 23.
148. J Ebbesson, 'Lex Pernis Aprivorus: An Experiment of Environmental Law Methodology' (2003) 15(2) Journal of Environmental Law 153.
149. Chen has observed that it is much easier to comprehend (and remedy) the fate of a single species than overwhelming regional or global phenomena such as fresh water decline or climate change: see Chen, above n 100, 521.
150. H Doremus, 'Biodiversity and the Challenge of Saving the Ordinary' (2002) 38 Idaho Law Review 325.
151. Chen, above n 100, 555.
152. Ministry of Environment and Forests, Government of India, New Delhi, National Forest Policy 1988 (No 3-1/86-FP) s 2 〈http://envfor.nic.in/legis/ legis.html#R〉;
153. see also Ministry of Environment and Forests, Government of Bangladesh, Dhaka, National Forest Policy 1994, Preamble 〈http://www.moef.gov.bd/ 〉.
154. M Bowman, 'The Nature, Development and Philosophical Foundation of the Biodiversity Concept in International Law' in M Bowman and C Redgwell (eds), International Law and the Conservation of Biological Diversity (Kluwer, 1996) 5-31.
155. Singh, above n 63, 96.
156. This is not uncommon in other countries as well: see S R Hirakuri, Can Law Save the Forest? Lessons from Finland and Brazil (CIFOR, 2003) 60.
157. See Bio-ecological Zones of Bangladesh (IUCN-Bangladesh, 2002).
158. This is particularly true for the projects supported by international donors. But the trend is gradually changing. In India, in many cases, the judiciary has adopted a firm view of environmental conservation. However, considering the historical trend of degradation, it may be a long time before a positive impact can be seen: see Razzaque, above n 60, 320-33.
159. Markets for most of the environmental goods are not developed: see Chen, above n 100, 516.
160. For example, in the US the statutory valuation for pollution of a mangrove wetland is only US$1 per square foot of mangrove or seagrass impacted and US$10 for coral reefs, whereas the actual cost of damage might be ten times more or even higher: see E P Kimbel, 'The Ecological and Economic Failures of Florida's Mangrove Regulatory Scheme' (2000) 5 Ocean and Coastal Law Journal 24;
161. see also J E Primavera, 'Development and Conservation of Philippine Mangroves: Institutional Issues' (2000) 35 Ecological Economics 91.
162. E B Barbier and M Cox, 'Does Economic Development Lead to Mangrove Loss? A Cross-country Analysis' (2003) 21(4) Contemporary Economic Policy 418.
163. Razzaque, above n 60, 69.
164. Singh, above n 63, 84-5.
165. Razzaque, above n 60, 106-7.
166. Divan and Rosencracz, above n 62, 21.
167. Razzaque, above n 60, 11.
168. For example, the Water Policy documents of India do not mention the role of wetlands, which are pivotal for the recharging of aquifers: see Government of India, above n 15, 5.
169. It has been observed that in other developed countries it is only recently that water-related ecosystems such as forests and wetlands have been included in water policies and strategies: see R Enderlein and F Bernardini, 'Nature for Water: Ecosystem Services and Water Management' (2005) 29 Natural Resources Forum 253.
170. This is particularly true for Bangladesh: see Razzaque, above n 60, 341.
171. Gray has identified several barriers to the successful implementation of MEAs in South African countries, which equally hold true for South Asian countries, eg: lack of political will; moral positions and common but differentiated responsibilities; lack of coordination and synthesis in implementation; lack of horizontal structures for inter-ministerial consultation and cooperation; lack of proper coordination and development of policy in advance and at negotiations; environmental laws and policies that are developed in response to problems and not in advance of them; lower prioritisation of the environment; low economic growth; limited financial resources; limited bureaucratic and professional skills; limited public participation in government policy-making; inadequate use of local scientific and traditional knowledge; over-bureaucratisation and corruption; lack of a regional body to oversee implementation; poor developing country representation in multilateral negotiations; lack of specialists in environmental law; and poor integration of environment and development policies: see K R Gray, 'Multilateral Environmental Agreements in Africa: Efforts and Problems in Implementation' (2003) 3 International Environmental Agreements: Politics, Law and Economics 97.
172. This holds true for developing countries in general - eg, Indonesia spend US$0.2 per year for the management of one hectare of protected area, whereas the figure for the US is 100 times more: see T Swanson, 'Why is there a Biodiversity Convention? The International Interest in Centralized Development Planning' (1999) 75(2) International Affairs 307.
173. Choudhury, above n 54, 15-48.
174. P Sands, Principles of International Environmental Law (Cambridge University Press, 2nd ed, 2003) 25-69.
175. A Kiss and D Shelton, International Environmental Law (Transnational, 2nd ed, 2000) 299-586.
176. G K Rosendal, The Convention on Biological Diversity and Developing Countries (Kluwer, 2000).
177. WHC, opened for signature 16 November 1972 (entered into force 17 December 1975).
178. CITES, opened for signature 3 March 1973 (entered into force 1 July 1975).
179. CMS, opened for signature 23 June 1979 (entered into force 1 November 1983).
180. UNCLOS, opened for signature 10 December 1982 (entered into force 16 November 1994).
181. CBD, opened for signature 5 June 1992 (entered into force 29 December 1993). The CBD is a framework convention, which creates a global structure to promote continued international cooperation and support national implementation. The objectives of the CBD are the conservation of biodiversity, the sustainable use of biodiversity's components, and the equitable sharing of benefits derived from genetic resources. State parties are required to take measures to ensure the conservation and sustainable use of biodiversity, monitor biodiversity in their territories, identify and regulate destructive activities, and integrate consideration of biodiversity into national decision-making: see D M McGraw, 'The CBD - Key Characteristics and Implications for Implementation' (2002) 11(1) Review of European Community and International Environmental Law 17.
182. Ramsar Convention (1971) art 3(1).
183. See, eg, WHC, art 4.
184. See, eg, CMS, art V which suggests conservation and maintenance of existing habitats and provision of new habitats for migratory species
185. UNCLOS, art 194(5).
186. CBD, arts 8 and 9.
187. Ibid art 8(a).
188. Ibid art 8(b).
189. Ibid art 8(d).
190. Ibid arts 1 and 5.
191. Ibid art 8(e). This is particularly important due to the presence of unsustainable shrimp farming and pollution-generating industries upstream.
192. CMS, art V.
193. UNCLOS, art 207.
194. Convention on the Law of the Non-navigational Uses of International Watercourses (1997) art 20 〈http://untreaty.un.org/cod/avl/ha/clnuiw/ clnuiw.html〉
195. Ibid art 23.
196. Iza argued that maintaining environmental flows is particularly relevant in this context: see A Iza, 'Developments under the Ramsar Convention: Allocation of Water for River and Wetland Ecosystems' (2004) 13(1) Review of European Community and International Environmental Law 40.
197. CBD, art 8(f).
198. WHC, art 11(4).
199. CBD, art 14(a).
200. The Stockholm and Rio Declarations, Agenda 21, as well as environmental treaties such as the Climate Change and Biodiversity Conventions, call for public participation in decision-making and for making environmental information available to the public: see A B M Marong, 'From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development' (2003) 16 Georgetown. International Environmental Law Review 73;
201. see also L A Firestone, 'You Say Yes, I Say No; Defining Community Prior Informed Consent under the Convention on Biological Diversity' (2003) 16 Georgetown International Environmental Law Review 171;
202. and M Woodhouse, 'Is Public Participation a Rule of the Law of International Watercourses?' (2003) 43 Natural Resources Journal 137.
203. Ramsar Convention (1971) art 5(1).
204. Convention on International Watercourses (1997) art 4: but not yet in force.
205. Ibid art 5.
206. Ibid art 7.
207. Ramsar Convention, art 2(3).
208. Ibid art 8(2-d).
209. CBD, art 14(c).
210. See generally, P Birnie and A Boyle, International Law and the Environment (Oxford University Press, 2nd ed, 2002).
211. D M Driesen, 'Thirty Years of International Environmental Law: A Retrospective and Plea for Reinvigoration' (2003) 30 Syracuse Journal of International Law and Commerce 353.
212. CBD, art 20; see also United Nations Framework Convention on Climate Change 1992 (UNFCCC) art 4(5) 〈http://unfccc.int/essential-background/ convention/background/items/2853.php〉.
213. CBD, art 16.
214. Ibid art 18; see also D Humphreys, 'The Elusive Quest for a Global Forests Convention' (2005) 14(1) Review of European Community and International Environmental Law 1.
215. J C Kunich, 'Losing Nemo: The Mass Extinction Now Threatening the World's Ocean Hotspots' (2005) 30 Columbia Journal of Environmental Law 1.
216. For example, China upgrades SEPA to ministerial status, but still allocates fewer personnel; Russia has downgraded Goskomecologia by merging it with natural resources. Most environmental agencies are small and still competing with older bureaucracies: see N A Robinson, 'Coming "Round the Bend" - Global Policy Trends and Initiatives' (SK046 ALI-ABA, 2005) 182.
217. Comparing five major biodiversity conventions Koester has observed that CBD has the largest number of soft obligations; CITES has the highest number of concrete obligations; the WHC, the Bonn Convention and CBD contain more soft obligations than concrete ones and the Ramsar Convention and CBD have more general obligations: see V Koester, 'The Five Global Biodiversity-related Conventions; A Stocktaking' (2002) 11(2) Review of European Community and International Environmental Law 96.
218. Another glaring example is the lack of a legally binding forest convention. At the Rio Conference a legally binding international mechanism to regulate forests was proposed. However, the regulation failed to materialise after debate between developing and developed countries over whether forests should be regarded as global commons or sovereign domains and whether forests should be converted into other forms of capital: see J L Innes and K B H Er, 'Global Forest Regulation in the Ten Years after Rio' (2002) 17(9) Trends in Ecology and Evolution 445.
219. Lipschutz observed that forest management techniques are basically for forest commodification, which is a major impediment to a forest convention: see R D Lipschutz, 'Why is There No International Forestry Law?: An Examination of International Forestry Regulation, Both Public and Private' (2000/2001) 19 UCLA Journal of Environmental Law and Policy 155.
220. See, eg, CBD, arts 5-11, 14.
221. S Oberthür, 'Clustering of Multilateral Environmental Agreements: Potentials and Limitations' (2002) 2 International Environmental Agreements: Politics, Law and Economics 318.
222. However, there has been a recent move towards developing MOUs between treaties such as Ramsar and CBD, and Ramsar and WHC: see D Pritchard, 'International Biodiversity-related Treaties and Impact Assessment - How Can They Help Each Other?' (2005) 23(1) Impact Assessment and Project Appraisal 7.
223. Mostly in a non-obligatory manner. Moreover, the countries have other pressing priorities: see Robinson, above n 168, 182.
224. The Ramsar Convention states: 'The inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated.' See Ramsar Convention, art 2(3), supplemented by the text of any major convention, though some argued that the states must not cause damage to the global environment through their use of these resources: see
225. M C C Segger, 'Significant Developments in Sustainable Development Law and Governance: A Proposal' (2004) 28 Natural Resources Forum 61.
226. O McIntyre, 'The Emergence of an "Ecosystem Approach" to the Protection of International Watercourses under International Law (2004) 13(1) Review of European Community and International Environmental Law 1;
227. see also J Brunnee and S J Toope, 'The Changing Nile Basin Regime: Does Law Matter?' (2002) 43 Harvard International Law Journal 122.
228. For example, the International Watercourses Convention (1997) relies on the principles of 'equitable utilisation' and 'no significant harm'. But the interpretation of them can be contradictory. The upper riparian countries might stress the 'equitable utilisation principle' while the lower riparian countries might stick to the 'no significant harm principle'. Thus they can counteract each other and the Convention does not provide any clear direction should such a situation occur: see
229. S H Bragdon, 'National Sovereignty and Global Environmental Responsibility: Can the Tension be Reconciled for the Conservation of Biological Diversity?' (1992) 33 Harvard International Law Journal 381.
230. E Benvenisti, 'Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law' (1996) 90 American Journal of International Law 384.
231. R Laster, D Livney and D Holender, 'The Sound of One Hand Clapping: Limitations to Integrated Resources Water Management in the Dead Sea Basin' (2005) 22 Pace Environmental Law Review 123.
232. B Karkkainen, 'Marine Ecosystem Management and a "Post- sovereign" Transboundary Governance' (2004) 6 San Diego International Law Journal 114.
233. Gray, above n 126, 97-135.
234. A Z Cassar and C E Bruch, 'Transboundary Environmental Impact Assessment in International Watercourse Management' (2003) 12 New York University Environmental Law Journal 169.
235. J Kraska, 'Sustainable Development is Security: The Role of Transboundary River Agreements as a Confidence Building Measure in South Asia' (2003) 28 Yale Journal of International Law 465.
236. M A Giordano and A T Wolf, 'Sharing Waters: Post Rio International Water Management' (2003) 27 National Resources Forum 163.
237. C P Graffy, 'Water, Water, Everywhere, Nor Any Drop to Drink: The Urgency of Transnational Solutions to International Riparian Disputes' (1998) 10 Georgetown International Environmental Law Review 399.
238. F Daibes, 'A Progressive Multidisciplinary Approach for Resolving the Palestinian-Israel Conflict over the Shared Transboundary Groundwater: What Lessons Learned from International Law?' (2004) 8 University of Denver Water Law Review 93.
239. Brunnee and Toope, above n 175.
240. Farrier and Tucker have described it as 'tolerating existing uses in the context of scientific uncertainty': see D Farrier and L Tucker, 'Wise Use of Wetlands under the Ramsar Convention: A Challenge for Meaningful Implementation of International Law' (2000) 12(1) Journal of Environmental Law 21. In fact, humans have basic psychological limitations in perceiving small biological variations and therefore they also have great difficulty in articulating politically persuasive reasons for preserving such biology: see
241. Chen, above n 100, 601.
242. For example, Gardner observed that 'the more specific recommendations and resolutions of the Conference of Parties urge, encourage, persuade and cajole. They plainly do not mandate; however, this is typical of conservation treaties': see R C Gardener, 'Rehabilitating Nature: A Comparative Review of Legal Mechanisms that Encourage Wetland Restoration Efforts' (2003) 52 Catholic University of Law Review 580.
243. Giordano and Wolf, above n 183.
244. Beth L Kruchek, 'Extending Wetlands Protection under the Ramsar Treaty's Wise Use Obligation' (2003) 20 Arizona Journal of International and Comparative Law 425.
245. Razzaque, above n 60, 320-33.
246. In many cases the basis on which it is invoked is left ambiguous or unexplained: see D Bodansky and J Brunnee, 'The Role of National Courts in the Field of International Environmental Law' (1998) 7:1 Review of European Community and International Environmental Law 11.
247. Robinson, above n 168, 181.
248. M J Bowman, 'International Treaties and the Global Protection of Birds: Part II' (1999) 11(2) Journal of Environmental Law 293.
249. M C C Segger et al, 'Prospects for Principles of International Sustainable Development Law after the WSSD: Common but Differentiated Responsibilities, Precaution and Participation' (2003) 12(1) Review of European Community and International Environmental Law 54.
250. For example, in the US more forward-looking legislative Acts, such as the Magnuson-Stevens Fishery Conservation and Management Act and the National Environmental Policy Act, have been formulated within the last two decades: see K Sherman, 'Why Regional Coastal Monitoring for Assessment for Ecosystem Health?' (2000) 6(3) Ecosystem Health 205.
251. See generally Birnie and Boyle, above n 162.
252. While there has been incorporation of international environmental law principles in the judicial decisions, it has not been on a large scale. Some of the cited principles are: the human right to environmental protection; polluter pays principles; the precautionary principle; sustainable development; and intergenerational equity: see Anderson, above n 4.
253. Huffman termed this as 'internationalisation' of the national legal regime: see J L Huffman, 'The Past and Future of Environmental Law' (2000) 30 Environmental Law 33.
254. See Ebbesson, above n 107.
255. Anderson has observed that in the absence of incorporating legislation the Indian courts will not enforce a treaty provision which conflicts with an existing or subsequent statute: see Anderson, above n 4.
256. See M Purdon, 'The Nature of Ecosystem Management: Postmodernism and Plurality in the Sustainable Management of the Boreal Forest' (2003) 6 Environmental Science and Policy 377.
257. This certainly goes beyond the conventional protection measures and might require huge ecological engineering works: see M J G van Eeten and E Roe, Ecology, Engineering and Management: Reconciling Ecosystem Rehabilitation and Service Reliability (Oxford University Press, 2002);
258. see also E P Kimbel, 'The Ecological and Economic Failures of Florida's Mangrove Regulatory Scheme' (2000) 5 Ocean and Coastal Law Journal 43.
259. As Breazeale has stated, 'if people care about ... their national forests-then it is expected that they will use the courts to express their displeasure': see Breazeale, above n 104, 321.
260. However, PIL may slow down the process of decision-making: see C E Coon, 'Moving Toward Sound Forest Management' (2004) 14 Duke Environmental Law and Policy Forum 309.
261. E Morgera, 'An Update on the Aarhus Convention and its Continued Global Relevance' (2005) 14(2) Review of European Community and International Environmental Law 138.
262. H van der Linde et al, Beyond Boundaries: Transboundary Natural Resource Management in Sub-Saharan Africa (Biodiversity Support Program, 2001).
263. Leva has suggested a number of options - eg, revenue raising activities: tourism, taxes and charges, user fees, concessions, sales and royalties from bio-prospecting, donations; real property tools: conservation easement, mitigation banking, zoning and market-based measures: tradeable or transferable quotas, financial incentives for carbon sequestration, performance bonds, eco-labelling: see C E D Leva, 'The Conservation of Nature and Natural Resources Through Legal and Market Based Instruments' (2002) 11(1) Review of European Community and International Environmental Law 84.
264. R J Ferris Jr et al, 'International Environmental Law' (2004) 38 International Law 477.
265. Treaty Between the Government of the Republic of India and the Government of the People's Republic of Bangladesh on Sharing of the Ganga/Ganges Waters at Farakka (1996) Preamble 〈http://www.waterpolicy.com/farakka-water-treaty. htm〉
266. Similar concerns have been raised over the sharing of Colorado River water between Mexico and the US. Due to over-allocation, freshwater flow into the delta has been reduced by 75 per cent, resulting in gross reduction of wetland expanse, vegetation loss and species endangerment. Currently stakeholders are demanding the addition of a clause, which would expressly dedicate water for delta conservation: see O McIntyre, 'The Emergence of an "Ecosystem Approach" to the Protection of International Watercourses under International Law' (2004) 13(1) Review of European Community and International Environmental Law 1.
267. S M A Salman and K Uprety, 'Hydro-politics in South Asia: A Comparative Analysis of the Mahakali and the Ganges Treaties' (1999) 39 Natural Resources Journal 295;
268. see also Divan and Rosencracz, above n 62, 571-8.
269. J W Jacobs, 'The Mekong River Commission: Transboundary Water Resources Planning and Regional Security' (2002) 168(4) Geographical Journal 354.
270. C M Lorenz, A J Gillbert and P Vellinga, 'Sustainable Management of Transboundary River Basins: A Line of Reasoning' (2001) 2 Regional Environmental Change 38.
271. J Thorsell, World Heritage Nomination - IUCN Technical Evaluation Sundarban Wildlife Sanctuaries (Bangladesh) Memo (1997) 〈http://whc.unesco. org/archive/advisory-body-evaluation/798.pdf〉;
272. see also Sampath, above n 11, 257.
273. For example, in the Aral Sea Basin, five riparian nations - Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan - have combined their efforts through a project to develop and implement water and salt management strategies and to restore coastal wetlands. Kenya, Tanzania and Uganda have a similar project for restoration of the Lake Victoria ecosystem: see J I Uitto, 'Multi-country Cooperation Around Shared Waters: Role of Monitoring and Evaluation' (2004) 14 Global Environmental Change 12.
274. L P Hildebranda, V Pebblesb and D A Fraserc, 'Cooperative Ecosystem Management Across the Canada-US Border: Approaches and Experiences of Transboundary Programs in the Gulf of Maine, Great Lakes and Georgia Basin/Puget Sound' (2002) 45 Ocean and Coastal Management 421.
275. S L Goodwin, 'Conservation Connections in a Fragmented Desert Environment: The US-Mexico Border' (2000) 40 Natural Resources Journal 989.
276. P Graichen, 'Can Forestry Gain from Emissions Trading? Rules Governing Sinks Projects Under the UNFCCC and the EU Emissions Trading System' (2005) 14(1) Review of European Community and International Environmental Law 11.
277. The GEF and environmental funding do not compensate for public goods on an ongoing basis and so there is no incentive to provide for their existence beyond the project timeframe: see Swanson, above n 127.