INTERNATIONAL ENVIRONMENTAL LAW
The Trail Smelter Arbitration is generally associated with the ad hoc → arbitration
implemented by the governments of the US and Canada in 1935 to settle a dispute over air
pollution emanating from a Canadian smelter—located in Trail, British Columbia—that
harmed agricultural and timber interests across the border in the US, in Stevens County,
Washington. That arbitration generated two decisions—1938 and 1941—in which the panel articulated or acted upon two principles that have come to be widely regarded as the locus classicus (a passage or here a legal case, considered to be the best known or most authoritative on a particular subject) and fons et origo (the source and origin of something) of international environmental law.
Notable Things
1. Arbitration agreed between US & Canada
2. Attempt by US citizens to bring a case against Canada, which is not permitted.
3. Providing compensation for damage leading to polluter pays principle under IL
(Source: Miller, Russel A. 2007. Trail Smelter Arbitration. Max Planck Encyclopedia of Public International. Find this file in Additional Resources)
Bhopal Gas Case
35 years ago, the city of Bhopal, India, witnessed a horrific gas leak that originated from a facility operated by Union Carbide India Limited (UCIL), which had as its parent company, the American-based Union Carbide Corporation (UCC). Thousands were killed, with many more injured. 145 cases were filed throughout various U.S. federal district courts on behalf of the victims asserting that UCIL and UCC were liable. Eventually, these cases were consolidated through the Multi-District Litigation (MDL) process and placed onto the docket of federal Judge John Keenan. In 1986, Judge Keenan issued his famous forum non conveniens opinion, which stated that the Indian courts – and not the U.S. federal judiciary – were the proper venue for hearing these claims.
More on how this 90 year old Judge is continuing to impact the debate can be read in this news story here - https://www.nytimes.com/2018/07/19/climate/climate-lawsuit-new-york.html
A note on the how Indian courts and Indian government dealt with the matter can be read here - http://www.legalservicesindia.com/article/373/Legal-Aspects-of-the-Bhopal-Gas-Tragedy.html
CUSTOMARY INTERNATIONAL LAW
In the context of Customary International Law, the Nicaragua Case could be a useful one to discuss CIL. A discussion of this case by Dakshinie Ruwanthika Gunaratne here - https://ruwanthikagunaratne.wordpress.com/tag/customary-international-law-in-the-nicaragua-case/ is very illustrative.
For a summary of the case you can read this Press Release - https://www.icj-cij.org/files/case-related/70/9973.pdf
TREATIES
DEATH PENALTY
In the class on 3/9/19, there was a discussion about norms and I had pointed out that in the case of Death Penalty, India's actions are affected by the decision of countries in the EU which have abolished death penalty as punishment. The direct impact is found in the case of the Abu Salem case who was extradited from Portugal and in the process of extradition, India entered into an agreement to not apply death penalty and also limit the term of imprisonment to 25 years. The latter part seems to have been violated, as reported, here. The specific terms of the India-Portugal Bilateral Extradition Treaty is available here - http://mea.gov.in/Images/CPV/leta/Portugal.pdf. The specific provision which applies to the matter of death penalty is in Article 4 (1), "1. Extradition shall not be granted if: The requested State considers that the execution of the request is contrary to its Constitutional principles and domestic laws;" and here Portugal's ban on death penalty would come into play. A very good update on the extradition is a piece titled "India’s challenges in extraditing fugitives from foreign countries".
As for the status of death penalty in India, it is widely known that the Bachan Singh vs State Of Punjab 9 May, 1980 is the authoritative one which laid down the the ‘rarest of rare’ doctrine. This case arose when Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death sentence and dismissed his appeal. The Supreme Court heard this matter and the relevant observation of the majority (4-1) judgment is below.
Para 207. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
Through this case, I suppose you can find the relationship between International Law and Domestic Law. If you are more interested in this topic you can consult the DEATH PENALTY INDIA REPORT which is a project undertaken by scholars at National Law University, Delhi and who have also prepared a report titled MATTERS OF JUDGMENT which is based on interviews of judges who have passed the death sentence and finally prepared a DEATH PENALTY STATISTICS PAGE too.
TREATIES
DEATH PENALTY
In the class on 3/9/19, there was a discussion about norms and I had pointed out that in the case of Death Penalty, India's actions are affected by the decision of countries in the EU which have abolished death penalty as punishment. The direct impact is found in the case of the Abu Salem case who was extradited from Portugal and in the process of extradition, India entered into an agreement to not apply death penalty and also limit the term of imprisonment to 25 years. The latter part seems to have been violated, as reported, here. The specific terms of the India-Portugal Bilateral Extradition Treaty is available here - http://mea.gov.in/Images/CPV/leta/Portugal.pdf. The specific provision which applies to the matter of death penalty is in Article 4 (1), "1. Extradition shall not be granted if: The requested State considers that the execution of the request is contrary to its Constitutional principles and domestic laws;" and here Portugal's ban on death penalty would come into play. A very good update on the extradition is a piece titled "India’s challenges in extraditing fugitives from foreign countries".
As for the status of death penalty in India, it is widely known that the Bachan Singh vs State Of Punjab 9 May, 1980 is the authoritative one which laid down the the ‘rarest of rare’ doctrine. This case arose when Bachan Singh, appellant in Criminal Appeal No. 273 of 1979, was tried and convicted and sentenced to death under Section 302, Indian Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge. The High Court confirmed his death sentence and dismissed his appeal. The Supreme Court heard this matter and the relevant observation of the majority (4-1) judgment is below.
Para 207. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
Through this case, I suppose you can find the relationship between International Law and Domestic Law. If you are more interested in this topic you can consult the DEATH PENALTY INDIA REPORT which is a project undertaken by scholars at National Law University, Delhi and who have also prepared a report titled MATTERS OF JUDGMENT which is based on interviews of judges who have passed the death sentence and finally prepared a DEATH PENALTY STATISTICS PAGE too.
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