Doctoral research

Roopa Madhav

This research examines the application of the public trust doctrine in decision-making and resource allocation by the mining bureaucracy in India. It seeks to provide a normative account of the public trust doctrine and argues that modern day public trust doctrine must incorporate elements of the principles of equity and establish strong community participation in decision-making, along with robust environmental accountability. It interrogates whether the doctrine has relevance beyond being a judicial veto of administrative action to also being a guiding tool that outlines the limits of administrative power in everyday decision-making. 

Public trust doctrine reconceptualises the state as a trustee of natural resources owing a fiduciary obligation to the community and ecology. Its extensive uptake and application in various jurisdictions across the world demonstrates its enduring relevance but poses a puzzle for natural resource governance. The conceptualisation of the state as a caring and accountable trustee of resources diverges vastly from the reality of state being more of an enterprising economic entity. As the crisis of governance around iron ore mining in India demonstrates, the counterfactual is true, and administrators operate within a complex web of drivers and pressures. Although the doctrine of public trust is invoked by the courts regularly, it is yet to be fully examined and understood as a normative concept in Indian jurisprudence. The limited scholarship on the doctrine thus far, focused primarily on the judicial interpretation, sheds no light on how the doctrine operates in administrative practice.

By examining the guidance, which provides for decision-making in the context of iron ore mining, this research argues for a better understanding of the power of democratisation of the doctrine in reality. In arguing for a richer understanding of the doctrine, I suggest that the core content of the public trust doctrine is not a static idea and its iterative reinterpretation is possible only through a process of engagement with the realities of decision-making and a sustained consultation with the beneficiaries of the trust resources i.e. the community of people belonging to any nation.

Gayathri Divakara Naik

The role of groundwater in realising the fundamental right to water and food security of the nation is immense as it contributes to half of India's drinking water and irrigation water demands. However, the current groundwater legal framework based on the land-water nexus leads to inequitable access and allocation by restricting the benefits of groundwater access to landowners. State interventions like water-related subsidies aim to address this inequitable access, ensure equity and inclusiveness in accessing groundwater drinking water supply and support necessary inputs like technology and credit in groundwater-based irrigation.

Nevertheless, factors like land rights, social discrimination, economic disparities, political choices, and bureaucratic interventions that influence and determine access to subsidies in drinking water and agriculture development schemes widen the inherent inequity in groundwater access and affect supply sustainability. Furthermore, the excessive use of subsidies and the current land-water nexus has led to groundwater and aquifers depletion and deterioration, threatening the source sustainability and necessitating reconceptualisation of our current legal, policy and administrative framework to address these ecological impacts of subsidies and groundwater extraction.

This thesis explores the role of subsidies in equity and inclusiveness in groundwater access and allocation and examines the impacts and implication of subsidies on distributive and social equity and environmental sustainability in groundwater access and regulation in India. It uses a tripartite water justice framework based on distributive, social, and ecological justice and employs a socio-legal approach to analyse subsidies; contribution to groundwater access and sustainability. This thesis argues for a paradigm shift in groundwater regulation from the current land rights-based, anthropocentric water demands focused, curative approach to adopting ecological justice framework in water governance to balance human rights and environmental water needs.

Zainab Lokhandwala

The conservation and sustainable use of biogenetic resources in food and agriculture is a foundational step towards achieving food sovereignty. Food sovereignty as a concept has evolved since its first articulation in 1996 by Via Campesina and has over the years received the support of many governments, international and national NGOs, and advocacy groups. As a legal concept, food sovereignty has found utterance in many laws and policies across jurisdictions. In India, many aspects of food sovereignty have been advocated, yet the Indian state has largely stood in defence of neoliberal agricultural policies favouring big farmers while treating small and medium-scale farmers ambivalently.

Several contradictory policy decisions over the years have affected farmers in different ways. These reflect little or no commitment towards using food sovereignty as an agricultural policy approach. Rights over biogenetic resources, being an integral part of food sovereignty, has seen a shift from the hands of farmers to public and private bodies that now control, manage and bear the responsibility to conserve these resources. Legally this has been made possible through the introduction of plant breeders' rights in 2001, in combination with other laws, policies and market developments.

The diminishing farmers’ control and autonomy over biogenetic resources is a consequence of ‘farmers' rights’ being framed as discursive rights standing as exceptions to mainstream property rights. This thesis argues that farmers ought to be the primary custodians of rights over biogenetic resources. Such rights need to be theoretically and practically developed in furtherance of food sovereignty of small and medium-scale farmers.

Sharowat Shamin

The energy sector has been playing a pivotal role in shaping bilateral, multilateral, and regional international relations. Energy demand is on a sharp rise in the Global South ever since it entered into industrialszation, which finally resulted in meeting various competitive development indexes in the name of ‘goals’. Bangladesh is a good example of contextualising this trend in the Global South.

While energy security is considered a major precursor to economic growth, security of human rights and freedoms remains outstanding. The dominance of fossil fuels is now being replaced by the lucrative renewable energy market. However, Bangladesh is heavily relying on imported technologies and resources (coal, oil, LNGs) which have used both public and privately owned power stations. In the absence of its own resources and/or technology and knowledge, Global South countries remain handicapped by international donors and corporations, which often results in the loss of ultimate energy sovereignty. On the other hand, they are the most impacted by climate change— extreme weather conditions of drought, salinity, loss of land, flood, river erosion, loss of biodiversity and much more irreversible damage.

This research investigates the reliance of Bangladesh on imported fossil fuels, the future of renewables and the sustainability of transitional energy. The objective of this research is to examine the sustainability of energy security vis-à-vis people’s access to clean and affordable energy and its resultant impact on human development. It questions energy security through the human rights lens and tests the enforceability of the right to clean and sustainable energy in the Global South context, taking Bangladesh as a case study. In doing so, it will critically analyse Bangladesh’s energy laws, policies, climate obligations and compare them with international environmental legal principles to see if the national policies can address energy poverty and ensure energy sovereignty and people’s access to clean and affordable energy.

Dr Feja Lesniewska

International law is increasingly developing and evolving through dynamic interactions between multiple actors across multiple levels, blurring the boundaries between global and localised processes. This phenomenon is particular to forest-related laws given their value to a broad range of actors locally and internationally. Such developments expand international legal research horizons beyond the traditional state-centric and institutional canopy.

To identify the influence that principles, actors and values have on forest-related law development and implementation processes, this research looks beyond the classical international law canopy. It examines new conservation and bioenergy initiatives in Yunnan, south-west China. The research employs a multi-scale approach that includes collecting data from a range of actors, extending from international to local actors. It uses qualitative discourse analysis of primary and secondary materials to identify the dynamics at play between international principles, actors and values involved in each case study.

The research consequently identifies the pathways different actors employ to influence forest-related law processes. It finds that actors employ certain international principles and values discourse. However, initial outcomes resulting from policy and regulatory interventions appear to weaken international principles and values which actors purport to be seeking to embed. This highlights how some partnerships, at all levels, between knowledge-based power and political authority can marginalise some actors' participation in forest law-making processes and thereby perpetuate certain values to the exclusion of others.

These findings are an important contribution to existing scholarship in extending analysis beyond the canopy of international law in order to map the pathways that actors adopt to influence forest-related law at multiple levels. It highlights the use of international principles and values discourse in law-making and implementation processes by privileged actors in local contexts. The conclusions provide a basis for future research towards improving regulatory intervention through adopting appropriate principles and values based on fair, transparent and informed participation by all actors to embed effective and appropriate forest-related law globally.

Dr Aïda Tamer-Chammas

Wars are part of human life and always will be, unfortunately. The law of armed conflict has developed since the mid-nineteenth century to alleviate the suffering of populations trapped in conflict. The relatively recent emergence in legal history of the environment concept and environmental law, together with scientific advances and development of weapons, has led the international community to confront the enduring environmental legacy of armed conflict. Doctrinal debates have centred on the adequacy and effectiveness of environmental protection obligations during armed conflict. This thesis focuses on state accountability for environmental damage arising out of armed conflict under the current international legal system.

The analysis centres first on the responsibility of states under the international law of armed conflict for damage to the environment and natural resources occurring in times of war, on the one hand, and during occupation, on the other. State responsibility under international environmental law for damage to the environment in times of armed conflict is then covered, raising the issue of applicability of international environmental law treaties during armed conflict and the resulting interaction between the norms of the law of armed conflict and international environmental law. Redress and compensation for environmental damage related to armed conflict are furthermore examined.

Having defined the relevant legal framework, the thesis investigates state practice during armed conflict. It considers damage to the environment and natural resources in two separate cases: during the war between Lebanon and Israel in 2006 and during the occupation of the West Bank and Gaza. Finally, the study concludes on the relevance of the legal regimes surveyed for providing a basis for state accountability for environmental damage resulting from armed conflict and suggests proposals to reinforce the perceived deficiencies of the system.

Lovleen Bhullar

Water pollution is a very serious problem in India and the legal framework’s response has manifested itself in the form of statutory enactments as well as judicial pronouncements. The higher judiciary has developed environmental jurisprudence in order to implement existing legislation or to fill the gaps resulting from the shortcomings or absence of legislation. This has involved the broad interpretation of Article 21 of the Constitution of India, which guarantees the fundamental right to life, as including the right to a clean and healthy environment, the right to water, the right to pollution-free water, the right to sanitation and the right to health, all of which can contribute towards addressing the problem of water pollution in India (hereinafter referred to collectively as ‘environmental rights’). A range of procedural and substantive innovations has also facilitated judicial interventions.

There is a plethora of literature highlighting the expansive interpretation by the higher judiciary of Article 21 of the Constitution to include environmental rights. However, there has been limited systematic analysis of these environmental rights. The process underpinning the judicial decisions where a rights-based approach is invoked by the litigants in the claim formation process and/or by the court in the adjudication process in cases alleging water pollution, as well as the outcome, which includes the actual implementation of the decisions and their impact as well as effectiveness in contributing to social change and addressing the problem of water pollution have also received limited attention.

This research seeks to fill this knowledge gap by (i) identifying the nature, scope and normative content of the environmental rights read into Article 21, to the extent that they are linked with water pollution, applying the approach that has heretofore been used for other socio-economic rights; (ii) assessing the extent to which the rights-based approach is incorporated, whether explicitly or implicitly, into the judicial decision-making process; and (c) assessing the state of implementation and impact of judicial decisions and undertaking a preliminary determination of the extent to which they succeed in securing social justice.

Fu-Lin Cheng

This thesis aims to explore Taiwan's participation in the global climate regime from the perspective of a non-party state. It argues that given the fact that climate change is the common concern of humankind and that the operation of the UNFCCC regime will de facto or even de jure affect non-party states, the regime should refer to how a non-party state should be treated when the non-party state is rejected rather than reluctant to join the regime.

In an effort to promote this argument, this thesis starts from the analysis that Taiwan's case is unique in international law and worth studying in chapter 2. Based on the analysis in chapter 2, the thesis turns to explore the evolution and development of the global climate regime to show a whole picture and some important features of the regime in chapter 3.

Chapter 4 moves to address the non-party state issue in the global climate regime. It first examines non-party issues based on public international law and then analyses the influences of overlap of climate issues in different regimes, including the potential conflict of norms on climate issues inside and outside the UNFCCC system and the difficulties that a non-party state will confront when integrating itself into the regime. Chapter 5 provides an empirical study on the making of Taiwan's laws and policies regarding climate change. It elucidates how a non-party state struggles to interact and reconcile its domestic laws and policies with the global climate regime.

Based on the above studies, chapter 6 turns to rethink the possible approaches to encourage the widest participation of all countries and prevent the problem of free riders. Chapter 7 concludes that the UNFCCC should make itself more flexible to construct a more harmonised and target–oriented global climate regime.

Chung-Hsien Lee

This research endeavours to study the proceeding of balancing and weighing as a form of legal reasoning by observing the application of sustainable development principle (hereafter abbreviated as SD) in the practice of market-based mechanisms in global GHG emission reduction.

Admittedly, SD possesses three competing elements: environmental protection, societal equity and economic development (hereafter abbreviated as EEE). The performance of SD principle relies thoroughly on the balance of these three subsidiary principles or values.

This research first argues that though the balancing of EEE is eventually determined by political processes or other de facto authority, it does not necessarily imply this activity is beyond the boundary of legal research; on the contrary, serving as a form of legal reasoning, the proceeding of balancing should first stick to basic legal methods and discourse rules for legal argument. On the face of it, most of these legal methods and discourse rules are constituted by procedural and formal requirements - but underlying all these facial demands are the assertions of indispensability of broad deliberation and pragmatic rationale grounded in consideration of specific regulatory circumstance and the current condition of the case referred. In other words, the essence of balancing is not abstract comparison and unmodifiable rating for competing values. Rather, the mission of legal balancing is to generate temporary but concrete decision on prioritisation of competing principles or values while considering limited human reason and social resources at hand.

This research then turns to the question of the impact that the global governance factor creates in balancing activities. From examining how SD is applied in market-based mechanisms such as CDM and EU ETS to respond to the global climate challenge, it is realised how governing architecture impacts the proceeding of the balancing and weighing of EEE. To be more specific, at municipal level, most of the countries prioritise their own economic development, while at the international or supranational level, equality between different states and groups stands out. While global issues like climate change demand global consensus and collaboration, the fragmented authorities across different layers of the climate regime may lead to separated valuating processes and eventually disagreement on the result of the balance of EEE.

Bearing in mind the essential characteristic of the balancing mentioned above remains unchanged in global governance structure, it is believed that the way to harmonise this pluralistic understanding of SD does not lie in imposing a top-down universalised standard of SD. In this sense, the significance of the Paris Agreement and ensuing architecture also does not lie in their binding force, if any, but whether they are formulated from the bottom-up, regardless of the North and South, to create a cooperative base for global governance upon which effective climate actions will be possible and the balance of EEE at global level can be achieved. Considering current regulatory circumstances, the global risk of endangerment or even extinction of humanity, other species and the entire ecosystem constitute global factors that will strongly affect the balancing of EEE on the global scale and eventually produce global GHG emission reduction targets, overriding the consideration of regional/sectoral equity and statal development.

By saying that preventing global warming is to be the priority as the result of the balancing of EEE, it does not imply that equity and development concerns are scarified entirely. Rather, what the balance of SD requires is to improve equity and to increase development on the premise of ensuring all humanity's survival and coexistence with other species on earth.

Sujith Koonan

India is facing a severe sanitation crisis. Open defecation, violence against women while going for open defecation, manual scavenging and early drop out of girl students are some of the critical sanitation or related issues in India. Poor sanitation severely affects human dignity, autonomy, agency and the environment. It also affects the realisation of other human rights such as health, water and education.

The legal response to this sanitation crisis has been piecemeal and grossly inadequate. The statutory framework is fragmented in nature with a number of laws addressing various aspects of sanitation, such as laws relating to local self-government institutions, environmental laws and laws prohibiting manual scavenging. In addition to that, the higher judiciary has interpreted the right to sanitation as part of the fundamental right to life. While the legal framework shows a piecemeal and rudimentary approach towards sanitation, ad-hoc policies and programmes have occupied the regulatory and governance space. This scenario complicates the legal framework on the right to sanitation with a number of law and policy instruments with little coordination between them.

In this context, this thesis examines the right to sanitation and analyses its contents in the Indian context. This thesis carries out the mapping of the existing legal and policy framework related to the right to sanitation in India and critically analyses it from the perspective of caste, gender, class and environment. This research aims to present a comprehensive conceptual framework for the right to sanitation. This is a significant improvement upon the existing framework, which is minimalist in nature and excludes many critical issues and aspects.

Birsha Ohdedar

Climate change poses new and complex questions on water resources and the realisation of the human right to water in India. In the last twenty years, water laws and policies in India have seen a number of reforms; however, water scarcity, water pollution, as well as the impacts of flooding remain critical issues throughout the country. Accordingly, how local communities and individuals adapt to climate change and how such adaptation is built into water law is an important issue.

Legal scholarship to date has generally utilised a narrow understanding of adaptation and water security in its application to water law. Scholarship in India on water law and climate change remains underdeveloped, despite the immediacy of the issues. To date, much of water law scholarship that has examined climate change has focused on climate change as an ontological environmental impact, creating and impacting on vulnerability to climate change, rather than looking at how climate change vulnerability can be “co-produced” by both meteorological factors and human agency. This can be seen in the Indian context through the role of dams and embankment development in flood vulnerability or the political economy of irrigation from groundwater in creating water scarcity.

The aim of this research is to examine the robustness of water law in India to deal with an unpredictable climate and deliver the right to water. Through adopting an inter-disciplinary approach, drawing upon political ecology, geography and law, this research will help situate legal decisions during “climate events” in social, historical and political contexts. Such contexts will reveal if water laws are creating or maintaining vulnerability, thus widening the lens in reforming water law. Such an approach will also provide a fresh perspective in rigorously examining the role of power, mediated through the law, impinging upon the realisation of the right to water. Case studies will focus on particular climate change affected districts in Rajasthan and West Bengal, both of which face issues of water scarcity (droughts) and flooding to varying degrees and caused by vastly different climactic factors.

Yuan Qiong Hu

The insertion of intellectual property law in international trade treaties has facilitated the global expansion of patents, including those concerning biomedical technologies used to address health challenges. The increasing number of patents, however, does not translate into sufficient responses to health innovation needs. Patent law has also failed to adequately accommodate innovations derived from traditional medical knowledge and practices.

Considerable critiques have been made on the conflict between the strong proprietary protection and insufficient innovation for health, as well as the pertinent contingency between openness and enclosure in patent law. Yet the central conceptual and doctrinal paths within patent law keep evolving regardless of the critiques and seeing patent law as an indispensable route to innovation remains the mainstream policy discourse at international and national levels. In this context, the legal construction of the notion of innovation through patent law has provided the material foundation for the law and policy debates related to biomedical research and development. At the same time, the technological changes for biomedical research have kept redefining the boundary of patent law.

The research intends to provide an alternative critique by exploring the co-production of patent law doctrines on biomedical inventions through the interplay of science and technologies with law. It looks at the role of expertise in the process of this legal construction, the reflection of such construction in social political spheres regarding the discourse of biomedical innovation and discusses the alternative conceptual framework on the issue.