Accountability of States at COP26: The Primary Issue of International Environmental Law

In the first two weeks of November, world leaders and national negotiators met in Scotland to discuss the ever-growing issue of “Climate Change.”[1] The dialogue addressing the origin of the Conference of the Parties (COP) commenced in the year 1992 when States decided to draw up an international treaty called the United Nations Framework Convention on Climate Change [“UNFCCC”], which enumerated certain accepted standards for global cooperation on fighting climate change. Over the years, the  convention saw essential modifications including the Paris Agreement of 2015 [2], wherein the contracting States agreed to set the goal of limiting global warming to well below 2 degrees celsius (preferably to 1.5 degrees celsius). To give an impetus to this collective effort the Conference of Parties to the UNFCCC convened COP26.

The Glasgow Climate Pact (the outcome of negotiation conducted in COP26) is the first-ever climate deal that explicitly plans to reduce coal, the worst fossil fuel for greenhouse gases.[3] Furthermore, the said deal has also emphasized the urgent need for emission cuts and an increase in the amount payable to the developing countries, to assist them to adapt and mitigate climate change. However, the sad truth is that the pledges undertaken by the States do not go far enough to limit temperature rise to 1.5 C. For example: In the earlier negotiations of the COP, the plan was to phase out coal. However, at the last moment, India and China backed out. The Climate Minister of India stated that:

“how developing countries could promise to phase out coal and fossil fuel subsidies when they have still to deal with their development agendas and poverty eradication.” 6

The stance taken by the Indian Minister seems reasonable enough. Developing countries like India and China have a legitimate reason to exploit resources that may adversely impact the environment to improve the socio-economic condition; however, the said decision to back out at the last minute may lead to adverse climate conditions. A failed promise is another factor that exemplifies the failure of COP’s failure. In 2009, developed countries undertook a pledge to provide $100 Billion to emerging economies, to assist developing nations in adapting to climate effects and making the transition to clean energy. The said transaction was set to progress in 2020, however, the same stands unfulfilled. In COP26[4], to mollify the delegates of the developing, it has been stated that around $500 Billion would be mobilized by the year 2025,[5] however, no one is sure such amount would be mobilized or not.

Rarely have States been held responsible for their actions that harm the environment. This article would explore the accountability of states, the challenges, and probable solutions to this issue of international environmental law.


State Accountability vis-a-vis International  Environmental Law

The aspect of accountability (or State Responsibility) of States in international law for their acts, omissions, and the subsequent consequence holds significance in Public International Law.[6] However, the accountability of States in international environmental law remains a problematic issue to deal with. Barring a few exceptions, states usually do not consider the question of accountability in international environmental treaties. Moreover, the International Courts have not adjudicated cases dealing with the accountability of States in environmental matters.[7]

State Responsibility refers to the accountability of a State wherein the State has violated international law by an act or omission which can be constituted as “Intentionally Wrongful Act.”[8] Furthermore, this “Internationally Wrongful Act” must be attributed to a State. An act or omission can be constituted as an “Internationally Wrongful Act” only when the said act or omission breaches an international legal obligation established by a treaty law (bilateral or multilateral environmental treaties) or customary international law (prohibition on environmental harm).


Challenges to hold States Accountable for “Environmental harm”

There are a plethora of challenges to make States accountable for environmental harm. These challenges pose great difficulty as there is no easy solution to resolve the imposed issues.

Challenge of Casualty 

The reason for environmental harm is usually a complex interplay of various factors. Sometimes, a single factor/State is responsible for environmental harm. However, for the most part, multiple factors/States are involved (often for a long time) in harming the environment. Therefore, establishing cause becomes a difficult challenge. Furthermore, the entities affected by the environmental harm can range from a single individual to groups, communities, regions, Single State, Multiple States. Moreover, it is indeed a fact that it is not productive to raise concerns to mitigate the environmental harm, as the multiplicity of polluters and victims would likely pose insurmountable evidentiary difficulties. This raises questions of standing, invocation of State Responsibility and the “injured states”.[9]

Challenge of Conflict

The act or omission that causes environmental harm are often lawful. They are often perceived to be essential for the socio-economic condition of the State. A blanket prohibition to questionable environmental acts does not seem feasible to many developing nations; the question turns to allowable thresholds and appropriate standards of conduct, which are often difficult to define. This challenge can be related to the concern of India and China at COP26, where the development of the nation and environmental concern comes into conflict.[10]

Challenge of Definition 

Defining environmental damage is one of the most challenging tasks. What amount must be compensated? How the amount of compensation should be calculated? Raises complicated economic, political, and philosophical questions.[11]

Challenge of Prevention

The most critical point is the stakes involved in environmental harm. It is much better to prevent damage rather than seek reparations (Aftermath/Ex Post). For example, in case of irreparable environmental damage, the State Responsibility/Accountability aspect will not hold much relevance; thus, missing the whole point of addressing global environmental problems.

Challenge of Diplomacy

The last challenge relates to the diplomatic aspect of international environmental law. As rightly pointed out by Dr. Christina Voigt, recourse to state accountability could potentially adversely affect the success of cooperative efforts to address environmental problems. The potential benefits of relying on State accountability must be balanced against the potential disruptions an adjudicative approach could cause to the multilateral effort in designing a treaty-based, diplomatic solution. For seeking an advisory opinion on the question of responsibility for climate change, it has been warned that:

“the potential benefits of an advisory opinion do not justify risks of a ruling that complicates efforts to reach a political solution. Such a ruling could distract from international negotiations, make them more difficult, or lessen pressure on states to change their behaviour by letting them off the hook legally.”[12]

The 2015 Paris Agreement came close to the accountability aspect as it contains a provision on “loss and damage associated with the adverse effects of climate change”, however, the decision adopting the Paris Agreement notes that the said provision “does not involve or provide a basis for any liability or compensation.” Thus, the issue with Paris Agreement relates to one of the significant contentions that the terms of accountability are constituted by the States who will be subjected to such accountability standards, ultimately giving the States power to manipulate their respective liability.



Public Accountabillity 

Teresa Kramarz and Susan Park observed that one example of the failure to integrate accountability is the displacement of resource-dependent communities in the name of conservation, without any accountability to these populations for the decisions that produced their marginalisation.[13] Hence, “Public Accountability” comes into the picture.

It is indeed a fact that States are the primarily responsible authority. “Public Accountability” must be the default setting for deliberation on responsibility and answerability for environmental harm. A call from “Public Accountability” is “to express a belief that persons with public responsibilities should be answerable to ‘the people for the performance of their duties”,[14] The State representatives are accountable to people; democratic elections and bureaucratic procedures maintain the required checks and balances on public officials (however, it is also true that these checks and balances have their own problem).[15] Elected representatives positively respond to the people’s demands for mitigating environmental harm and for adhering to the legislation and international agreements. Additionally, the state as a willing accomplice in this broad realm of accountability dialogue is expected to render internal mechanism to also make it structurally ammeneable to social accountibility. 

Therefore, “Public Accountability” holds much relevance when making a State responsible for its environmentally harmful act. Teresa Kramarz and Susan Park have devised six accountability questions that must be in Public Accountability to ensure that States are held responsible for their action. The six-question are as follows:[16]

  1. What is the primary purpose? [Answer: To represent.]
  2. Who is held to account? [Answer: Elected officials and civil servants.]
  3. To whom is accountability owed? [Answer: Responding to regulatory demands, upholding, and obeying the law, not abusing powers, serving the public interest.]
  4. What process demonstrates accountability? [Answer: Transparency of deliberative process, disclosure of information, open access to information, public consultations, report card, participatory audits, budget reviews.]
  5. What standards demonstrate accountability? [Answer: Legislation, treaties, conventions, protocols, enforcement, monitoring.]
  6. What sanctions are available? [Answer: Removal from office, legal action through the courts, fines, loss of trust.

Human Rights Aspect

Another strategy that has gained traction over the years is broadening the scope of States’ human rights obligations to solve the accountability gap in international environmental law, as it would assist in facilitating some justice to environmental issues. Recent cases regarding climate change have witnessed a human rights approach. A significant number of cases filed before various Courts rely on the human rights violation argument by displaying a connection between human rights and environmental harm. The hundred above cases regarding climate change/ climate law have been witnessed in a recent database.[17] Therefore, the idea of relating human rights with international environmental law seems promising to make States accountable for environmental harm.

Human rights are a powerful mechanism of advocacy as they provide a platform for the aggrieved to redress their fundamental problems. They also assist in protecting vital individual interests against overriding economic concerns, and at their best, human rights can be transformative and subversive of the very systems that created them. Cases regarding human rights-based climate claims have brought significant successes, For Example, The Dutch Urgenda case,[18]the German Bundesver fassungsgericht’s decision in Neubauer [19]and Endorois. Human rights assist in realizing environmentally friendly policies so as to achieve climate justice. Communication [20]case decided by African Commission on Human Rights as early as 2009 are essential examples. Thus, human rights have a significant role in making the State accountable for their questionable environmental action, which assists in addressing the political issue involved in climate.


The Bottom Line

 We must realize the fact that “Accountability” per se is a limited tool for improving the environment. As correctly observed by Teresa Kramarz and Susan Park, accountability remains a weak tool for environmental action because it is conceived as monitoring, compliance, and enforcement device that is applied, as an appendage, to the execution of particular interventions. This is the case when consultations with stakeholders of environmental problems take place after public, private, or voluntary governors have already drawn the constitutive boundaries of what is possible,[21] as observed earlier, this gives the States an arbitrary power to manipulate the accountability process, ultimately making no one responsible for the environmental harm.

When it comes to the stance taken by India and China at COP26, it makes it difficult to hold them accountable for their respective decision even though their decision may have catastrophic consequences, as the said decision does not formally violate any set standards, moreover, the decision does not lead to any sanction. However, it does not mean that there is nothing to do about it.

When it comes to accountability, we must realize that making a State environmentally accountable does not only mean to make a State responsible and answerable to their respective action. It also means to make the State responsible and answerable for protecting the environment and the relevant stakeholders. “Public Accountability” and “Human Rights Aspect” are two critical tools to make the State liable for inflicting environmental harm; even though they are not as effective as a treaty or custom.


[1] Glasgow Climate Change Conference – October-November 2021, UNFCCC, climate-change-conference-october-november-2021.

[2] Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, TIAS. No. 16-1104. [“Paris Agreement”].

[3] Paul Rincon, COP26: New global climate deal struck in Glasgow, BBC, 14 Nov. 2021, HTTP:// world-59277788.

[4] Ibid.

[5] Ibid.

[6] J. Crawford and J. Watkins, “International Responsibility” in The Philosophy of International Law 293 (J. Tasioulas and S. Besson eds., Oxford Uni. Press, 2010).

[7] A. Boyle and J. Harrison, Judicial Settlement of International Environmental Disputes: Current Problems, 4 J INT DISPUTE SETTL 2, 245–276 (2013).

[8] Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, YB Int’l L. Comm’n Vol. II art. 2,(2001) UN Doc. A/56/10 4(1).

[9] Dr. Christina Voigt, International Environmental Responsibility and Liability, University of Oslo, 3 (2021).

[10] Ibid.

[11] Ibid.

[12] Ibid. at 4; D. Bodansky, Ask the experts: Climate change and international law, PBS, 10 Aug., 2012, HTTP://

[13] Teresa Kramarz and Susan Park, Accountability in Global Environmental Governance: A Meaningful Tool for Action?

[14] Glob. Environ. Politics 2, 2 (2016). Michael W. Dowdle, Public Accountability: Designs, Dilemmas and Experiences 3 (Cambridge University Press, 2006).

[15] Edward Rubin, The Myth of Non-Bureaucratic Accountability and the Anti-Administrative Impulse, In Public Accountability: Designs, Dilemmas and Experiences 52–82 (Michael D. Dowdle ed., Cambridge Uni. Press, 2006).

[16] Kramarz and Susan Park, supra note 15 , at 11.

[17] Global trends in climate change litigation: 2021 snapshot, CCCEP, The Grantham Research Institute on Climate Change and the Environment, Jul. 2021, trends-in-climate-change-litigation_2021-snapshot.pdf.

[18] Urgenda Case, Jan. 13, 2020, Netherlands-20-12-2019.pdf.

[19]Neubauer Case, Bundesverfassungsgericht, 24 Mar., 2021, E n t s c h e i d u n g e n / E N / 2 0 2 1 / 0 3 / rs20210324_1bvr265618en.html;jsessionid=D38FD0544ED179F72DE526FB80436112.2_cid377.

[20] Endorois Communication Case, African Commission on Human and Peoples’ Rights, Nov. 25, 2009, HTTP://

[21] Kramarz and Susan Park, supra note 15, at 19.

Image Credits:  Photo by Gerd Altmann from Pixabay 

When it comes to addressing accountability, we must realize that making a State environmentally accountable does not only mean to make a State responsible and answerable to their respective action. It also means to make the State responsible and answerable for protecting the environment and the relevant stakeholders.


The draft EIA notification, 2020: what went wrong?

India has witnessed consistent and rapid environmental degradation since the past 50 years which can be attributed to the depletion of forests, vehicular emissions, use of hazardous chemicals, improper disposal methods and various other undesirable human activities.  Incidents such as the Bhopal gas tragedy and the LG Polymers gas leak incident have accentuated the seriousness of the matter and the need for introspection and rectification as well as timely action. Implementation of regulatory norms to curb pollution may seem plausible, but it is even more crucial to check whether industrial units and other polluting entities are complying with the safety norms and standards laid down to check the adverse impact of their operations. In that light, The draft Environment Impact Assessment (EIA) Notification is bound to suffer implementational challenges and demands thorough revision to meet the environmental, developmental and sustainability parameters.


Concatenation of EIA in India

The current environmental laws seek to strike a balance between ‘ecology’ and ‘economy.’ The EIA framework is the practical aspect that guides towards striking this balance. Environmental Clearance (EC) is one of the most important features of an EIA framework. It refers to the process of assessing the impact of planned projects on the environment and people with an aim to abate/minimize the consequent environmental pollution. The clearance is mandatory of areas that are ecologically fragile, regardless of the type of project. 

The first EIA notification was notified in the year 1994, however, it covered only a few industries, leaving many out of the scope of impact assessment. In order to reflect upon the shortcomings of the 1994 framework, it was updated as EIA notification 2006[1].

However, the system curated by the EIA notification 2006 has been a far cry from perfect. Over the 15 odd years of its implementation, there have been quality issues with respect to the EIA reports,[2] and poor track record of post environmental clearance monitoring and compliance[3]. Over these years, it has also undergone numerous changes. In 2017, the Expert Appraisal Committee of the Environment Ministry exempted public hearings for coal mining projects which were undergoing capacity enhancements of up to 40 percent. However, the relaxation was subjected to due diligence of the EAC[4]. In 2015, the Ministry extended the validity of environmental clearance from 5 years to 7 years[5]. In March 2020, a draft notification[6] to replace the 2006 notification was issued for public comments. Since then, there have been many protests seeking a revaluation of the draft proposal.

In the meanwhile, vide an Office Memorandum dated 18th November 2020, the government proposed new set of rules to streamline the process to reduce the number of days taken by the authorities in granting EC.[7] This was in line with the government’s efforts to ensure the country’s growth trajectory in not blocked. Post that, another Office Memorandum was issued on 15th March 2021 that sought to streamline the process of granting environmental clearances with regard to essential details demanded.[8]

Very recently, another Notification dated 18th March 2021 was issued where the center exempted all projects from public hearing whose environmental clearance had expired and therefore had to apply afresh.[9]According to the notification, the prior environmental clearance for a project was granted for a maximum period of ten years, and in some cases five years. The projects which failed to complete within the granted time period had to undergo all the processes of scoping afresh, including conducting a public hearing. However, as per the new amendment, the compulsory step of conducting public hearing has been done away with if minimum 50% of the physical form of the project has been implemented. This was essential to remit further delay in such projects.

The notification has been introduced amidst the countrywide opposition to the contentious EIA Draft Notification 2020[10], that seeks to overhaul the environmental clearance process for large infrastructures and projects like dams, roads, mines townships, etc. The prepared draft proposes three major changes:

  1. Exemption from public consultation for certain construction projects.
  2. Powers to regularise projects retrospectively.
  3. Exemptions for process with strategic consultation.[11]


Contentious Issues in the Draft EIA Notification

Environmentalists across the country took an abhorrent view of the proposed Draft EIA Notification 2020, since it provided time and liberty to project proponents while strategically keeping the public uninvolved.

  1. Ex post facto environmental clearance

This rule allows any industry working in violation of the Environment (Protection) Act to apply for clearance. This seemed quite arbitrary since India has already witnessed severe disasters caused due to the lack of compliance to environmental clearances. Recently, in addition to the LG Polymers gas leakage at Vishakhapatnam, a natural gas well of Oil India Ltd. blew up and caught fire in Tinsukia, Assam.  Assam’s State Pollution Board reported that Oil India Ltd. was operating without any consent from the Board for more than 15 years!

  1. Defeats the purpose of public consultation

Generally, the interested stakeholders are given a period of 30 days to raise any concerns regarding the preliminary report of the assessment. The draft EIA 2020 seeks to reduce this period to a mere 20 days. Very often, the concerned stakeholders belong to poor communities residing in and around the project sites. The news of such a report usually reaches late, by the time consultations are considered, clearances are granted. This provision is in violation of Principle 10 of Rio Declaration which states that “Environmental issues are best handled with the participation of all concerned citizens”.

  1. Reducing the Number of Compliance Reports

The Compliance Report contains all the norms and regulations which are being followed by industries on a regular basis. It is an essential aspect of EIA since it helps the concerned authorities to put a system of checks and balance. However, as per the draft EIA 2020, this period has been increased to one year, granting unwarranted freedom to industrial units to grossly violate the environmental norms and cover it up with ease.

  1. Empowering the central govt. to declare certain projects as ‘strategic’ may have adverse outcomes

It is the Technical Expert Committee that has been endorsed with the power to categorize new projects rather than the Ministry of Environment, Climate and Forest Change. Once a particular project has been labelled/categorised as ‘strategic’ by the central government, information regarding it shall be removed from the public domain. Any information regarding environmental violations thus remain a privy to the government. Not being able to report violations except by the government or regulatory authority goes against the principles of natural justice. Diluting the norms with regards to detailed scrutiny by the Expert Committee, EIA studies, or public consultation leaves many projects and polluters out of the regulatory net.

  1. Exclusion of projects

Clause 26 of the Draft EIA Notification 2020 excludes a long list of projects from the purview of EIA. Further, Clause 14 of the said Notification excludes a number of projects from public consultation. Further, public consultation has also been exempted for the projects falling under Category B2.


Judicial Approach on the Draft EIA Notification

Since the issuance of the draft notification, various petitions have been filed in courts across the country demanding judicial scrutiny over specific controversial aspects as discussed above.

The notification allowing for grant of ex post facto environmental clearance for project proponents who have already commenced or completed projects without obtaining a prior EC was challenged in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors.[12], the Supreme Court held that the concept of ex post facto clearance as opposed to the fundamental principles of environmental jurisprudence and is violative of the previous EIA Notifications. It was further held in this case that such a clearance would lead to irreparable degradation of the environment. The grant of such problematic environmental clearances violates the precautionary principle and sustainable development. Furthermore, such clearances overturn the ‘polluter pays principle’ to make it ‘pay and pollute’ principle.

The court placed reliance on its previous ruling in the matter of Common Cause v. Union of India.[13] In this case, the Supreme Court held that “the concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006.” Therefore, relying on the verdict of the Hon’ble Supreme Court in the above two cases, it can be stated that ex post facto clearances are unsustainable is law and void.

In the case of Puducherry Environment Protection Association v. The Union of India.[14], the Madras HC addressed the issue in a different light. The question of whether an establishment providing livelihood to hundreds of people must be closed down on the grounds of non-compliance with prior EC, was addressed. After much deliberation, the HC arrived at the conclusion that violation of environmental norms can conveniently and effectively be checked. It also stressed on the fact that an ex post facto clearance takes away the scope of EIA.

Previously, the National Green Tribunal in S. P. Muthuraman v. Union of India[15], remarked that the law does not recognise any such examination which is made post-commencement and upon completion of a project. The Tribunal further went to acknowledge that the practice of conducting an EIA is internationally recognised. It also stated that granting post facto approvals could legalise and legitimise illegal and irregular projects which are in contravention of environmental norms and thus would defeat the purpose of the Environment Protection Act, 1986.

Another contention raised by the stakeholders was that the draft notification dilutes the EIA process making it easier for industries to escape accountability. Various courts also took stock of these concerns and the Delhi High Court granted an extension in the time allowed to the general public for giving suggestions to the Draft EIA Notification till August 11, 2020. It also suggested that the notification must be translated into other languages so that it can reach to even the remotest groups and seek recommendations.[16] However, the centre responded by saying that it was giving ‘thoughtful consideration’ to the HC’s views on translating the EIA Notification 2020 in twenty-two languages of the eighth schedule of the constitution.[17]The Karnataka High Court also took a similar approach and restrained the Ministry of Environment, Forest, and Climate Change from releasing the final notification till September 7, 2020, on the grounds of the ongoing pandemic.[18]


Giving Voice to the Voiceless

EIA is a part of participatory justice which gives voice to the voiceless[19].

The present EIA draft notification appears to be an attempt to promote the growth of industries and the corporate community at the cost of biodiversity, human rights and the environment. The draft is bound to suffer implementational challenges and demands thorough revision to meet the environmental, developmental and sustainability parameters. However, the final notification is not out yet and the judicial bent towards scrapping the post-commencement sanctions and increasing the period for public consultation period would most likely lead to a revision of those aspects. Moreover, provisions such as discretionary powers for the determination of strategic projects as well as a reduction in key compliance norms dilute the very essence of environmental assessments. Ease of doing business was ideally implemented to subvert bureaucratic dawdle but it should not become a veil for corporate subterfuge. Then again, too many compliance burdens deter participants in a sector from undertaking developmental projects. Some fine-tuning keeping the regulatory pressures minimal while balancing environmental repercussions would be the ideal course of action.













12 Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., 2020 SCC OnLine SC 347

13 Common Cause v. Union of India, (2017) 9 SCC 499.

14 Puducherry Environment Protection Association v. The Union of India, (2017) 8 MLJ 513.

15 S.P. Muthuraman v. Union of India, 2018 (8) FLT 498.

16 Vikrant Tongad v. Union of India, W.P. (C) 3747/2020 & CM APPL. 13426/2020.


18 United Conservation Movement Charitable and Welfare Trust v. Union of India, W.P. No. 8632/2020.

19 Samarth Trust and Anr. v. Union of India and Ors., Writ Petition (Civil) No 9317 of 2009



Image Credits: Photo by Alan Rodriguez on Unsplash

The present EIA draft notification appears to be an attempt to promote the growth of industries and corporate community at the cost of biodiversity, human rights and environment. The draft is bound to suffer implementational challenges and demands thorough revision to meet the environmental, developmental and sustainability parameters. However, the final notification is not out yet and the judicial bent towards scrapping the post commencement sanctions and increasing the period for public consultation period would most likely lead to revision of those aspects