Portugal vs. India

RIGHT OF PASSAGE OVER INDIAN TERRITORY CASE (Merits)

Portugal v. India

ICJ Reports 1960, p.6

The case concerning Right of Passage over Indian Territory (Portugal v. India) was referred to the Court by an Application filed on 22 December 1955. In that Application, the Government of Portugal stated that its territory in the Indian Peninsula included two enclaves surrounded by the Territory of India, Dadra and Nagar-Aveli. It was in respect of the communications between those enclaves and the coastal district of Daman, and between each other, that the question arose of a right of passage in favour of Portugal through Indian territory and of a correlative obligation binding upon India. The Application stated that in July 1954 the Government of India prevented Portugal from exercising that right of passage and that Portugal was thus placed in a position in which it became impossible for it to exercise its rights of sovereignty over the enclaves.

In its judgment the Court referred to the submissions filed by Portugal which in the first place requested the Court to adjudge and declare that a right of passage was possessed by Portugal and must be respected by India; this right was invoked by Portugal only to the extent necessary for the exercise of its sovereignty over the enclaves, and it was not contended that passage was accompanied by any immunity and made clear that such passage remained subject to the regulation and control of India, which must be exercised in good faith, India being under an obligation not to prevent the transit necessary for the exercise of Portuguese sovereignty. The Court then considered the date with reference to which it must ascertain whether the right invoked existed or did not exist. The question as to the existence of a right of passage having been put to the Court in respect of the dispute which had arisen with regard to obstacles placed by India in the way of passage, it was the eve of the creation of those obstacles that must be selected as the standpoint from which to certain whether or not such a right existed; the selection of that date would leave open the arguments of India regarding the subsequent lapse of the right of passage.

Portugal next asked the Court to adjudge and declare that India had not complied with the obligations incumbent upon it by virtue of the right of passage. But the Court pointed out that it had not been asked, either in the Application or in the final Submissions of the Parties, to decide whether or not India's attitude towards those who had instigated the over-throw of Portuguese authority at Dadra and Nagar-Haveli in July and August 1954 constituted a breach of the obligation, said to be binding upon it under general international law, to adopt suitable measures to prevent the incursion of subversive elements into the territory of another State.

Turning then to the future, the Submissions of Portugal requested the Court to decide that India must end the measures by which it opposed the exercise of the right of passage or, if the Court should be of opinion that there should be a temporary suspension of the right, to hold that that suspension should end as soon as the course of events disclosed that the justification for the suspension had disappeared. Portugal had previously invited the Court to hold that the

arguments of India concerning its right to adopt an attitude of neutrality, the application of the United Nations Charter and the existence in the enclaves of a local government were without foundation. The Court, however, considered that it was no part of its judicial function to declare in the operative part of its Judgment that any of those arguments was or was not well founded.

India had contended in the first place that the right of passage claimed by Portugal was too vague and contradictory to enable the Court to pass judgment upon it by the application of the legal rules enumerated in Article 38 (1) of the Statute. There was no doubt that the day-to-day exercise of the right might give rise to delicate questions of application but that was not, in the view of the Court, sufficient ground for holding that the right was not susceptible of judicial determination.

Portugal had relied on the Treaty of Poona of 1779 and on sanads (decrees) issued by the Maratha ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the enclaves with the right of passage to them; India had objected that what was alleged to be the Treaty of 1779 was not validly entered into and never became in law a treaty binding upon the Marathas. The Court, however, found that the Marathas did not at any time cast any doubt upon the validity or binding character of the Treaty. India had further contended that the Treaty and the two sanads did not operate to transfer sovereignty over the assigned villages to Portugal but only conferred, with respect to the villages, a revenue grant. The Court was unable to conclude from an examination of the various texts of the Treaty of 1779 that the language employed therein was intended to transfer sovereignty; the expressions used in the two sanads, on the other hand, established that what was granted to the Portuguese was only a revenue tenure called a jagir or saranjam, and not a single instance had been brought to the notice of the Court in which such a grant had been construed as amounting to a cession of sovereignty. There could, therefore, be no question of any enclave or of any right of passage for the purpose of exercising sovereignty over enclaves.

The Court found that the situation underwent a change with the advent of the British as sovereign of that part of the country in place of the Marathas: Portuguese sovereignty over the villages had been recognized by the British in fact and by implication and had subsequently been tacitly recognized by India. As a consequence the villages had acquired the character of Portuguese enclaves within Indian territory and there had developed between the Portuguese and the territorial sovereign with regard to passage to the enclaves a practice upon which Portugal relied for the purpose of establishing the right of passage claimed by it. It had been objected on behalf of India that no local custom could be established between only two States, but the Court found it difficult to see why the number of States between which a local custom might be established on the basis of long practice must necessarily be larger than two.

It was common ground between the Parties that during the British and post-British periods the passage of private persons and civil officials had not been subject to any restrictions beyond routine control. Merchandise other than arms and ammunition had also passed freely subject only, at certain times, to customs regulations and such regulation and control as were necessitated by considerations of security or revenue. The Court therefore concluded that, with regard to private persons, civil officials and goods in general there had existed a constant and uniform practice allowing free passage between Daman and the

enclaves, it was, in view of all the circumstances of the case, satisfied that that practice had been accepted as law by the Parties and had given rise to a right and a correlative obligation.

As regards armed forces, armed police and arms and ammunition, the position was different.

It appeared that, during the British and post-British periods, Portuguese armed forces and armed police had not passed between Daman and the enclaves as of right, and that after 1878 such passage could only take place with previous authorization by the British and later by India, accorded either under a reciprocal arrangement already agreed to, or in individual cases: it had been argued that that permission was always granted, but there was nothing in the record to show that grant of permission was incumbent on the British or on India as an obligation.

A treaty of 26 December 1878 between Great Britain and Portugal had laid down that the armed forces of the two Governments should not enter the Indian dominions of the other, except in specified cases or in consequence of a formal request made by the party desiring such entry. Subsequent correspondence showed that this provision was applicable to passage between Daman and the enclaves: it had been argued on behalf of Portugal that on twenty-three occasions armed forces crossed British territory between Daman and the enclaves without obtaining permission, but in 1890, the Government of Bombay had forwarded a complaint to the effect that armed men in the service of the Portuguese Government were in the habit of passing without formal request through a portion of British territory en route from Daman to Nagar-Aveli which would appear to constitute a breach of the Treaty; on 22 December, the Governor-General of Portuguese India had replied: "Portuguese troops never cross British territory without previous permission", and the Secretary-General of the Government of Portuguese India stated on 1 May 1891: "On the part of this Government injunctions will be given for the strictest observance of … the Treaty". The requirement of a formal request before passage of armed forces could take place had been repeated in an agreement of 1913. With regard to armed police, the Treaty of 1878 and the Agreement of 1913 had regulated passage on the basis of reciprocity, and an agreement of 1920 had provided that armed police below a certain rank should not enter the territory of the other party without consent previously obtained; finally, an agreement of 1940 concerning passage of Portuguese armed police over the road from Daman to Nagar-Aveli had provided that, if the party did not exceed ten in number, intimation of its passage should be given to the British authorities within twenty-four hours, but that, in other cases, "the existing practice should be followed and concurrence of the British authorities should be obtained by prior notice as heretofore."

As regards arms and ammunition, the Treaty of 1878 and rules framed under the Indian Arms Act of 1878 prohibited the importation of arms, ammunition or military stores from Portuguese India and its export to Portuguese India without a special licence. Subsequent practice showed that this provision applied to transit between Daman and the enclaves.

The finding of the Court that the practice established between the Parties had required for the passage of armed forces, armed police and arms and ammunition the permission of the British or Indian authorities rendered it unnecessary for the Court to determine whether or

not, in the absence of the practice that actually prevailed, general international custom or general principles of law recognized by civilized nations, which had also been invoked by Portugal, could have been relied upon by Portugal in support of its claim to a right of passage in respect of these categories. The Court was dealing with a concrete case having special features: historically the case went back to a period when, and related to a region in which, the relations between neighbouring States were not regulated by precisely formulated rules but were governed largely by practice: finding a practice clearly established between two States, which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice. The Court was, therefore, of the view that no right of passage in favour of Portugal involving a correlative obligation on India had been established in respect of armed forces, armed police and arms and ammunition.

Having found that Portugal had, in 1954, a right of passage in respect of private persons, civil officials and goods in general, the Court lastly proceeded to consider whether India had acted contrary to its obligation resulting from Portugal's right of passage in respect of any of these categories. Portugal had not contended that India had acted contrary to that obligation before July 1954, but it complained that passage was thereafter denied to Portuguese nationals of European origin, to native Indian Portuguese in the employ of the Portuguese Government and to a delegation that the Governor of Daman proposed, in July 1954, to send to Nagar-Aveli and Dadra. The Court found that the events which had occurred in Dadra on 21-22 July 1954 and which had resulted in the overthrow of Portuguese authority in that enclave had created tension in the surrounding Indian district, having regard to that tension, the Court was of the view that India's refusal of passage was covered by its power of regulation and control of the right of passage of Portugal.

In its Judgment, the Court:

(a) found, by 11 votes to 4, that Portugal had in 1954 a right of passage over intervening Indian territory between the enclaves of Dadra and Nagar-Aveli and the coastal district of Daman and between these enclaves, to the extent necessary for the exercise of Portuguese sovereignty over the enclaves and subject to the regulation and control of India, in respect of private persons, civil of officials and goods in general;

(b) found, by 8 votes to 7, that Portugal did not have in 1954 such a right of passage in respect of armed forces, armed police and arms and ammunition;

(c) found, by 9 votes to 6, that India had not acted contrary to its obligations resulting from Portugal's right of passage in respect of private persons, civil officials and goods in general.

ASYLUM CASE

Columbia v. Peru

ICJ Reports 1950, p. 266

The origin of the Colombian-Peruvian Asylum case lies in the asylum granted on January 3rd, 1949, by the Colombian Ambassador in Lima to M. Victor Raúl Haya de la Torre, head of a political party in Peru, the American People's Revolutionary Alliance.

On October 3rd, 1948, a military rebellion broke out in Peru; it was suppressed the same day. On the following day, a decree was published charging a political party, the American People's Revolutionary Party, with having prepared and directed the rebellion. The head of the Party, Victor Raúl Haya de la Torre, was denounced as being responsible. With other members of the party, he was prosecuted on a charge of military rebellion. As he was still at liberty on November 16th, summonses were published ordering him to appear before the Examining Magistrate. On January 3rd, 1949, he was granted asylum in the Colombian Embassy in Lima. Meanwhile, on October 27th, 1948, a Military Junta had assumed power in Peru and had published a decree providing for Courts-martial for summary judgment in cases of rebellion, sedition and rioting; but this decree was not applied to the legal proceedings against Haya de la Torre and others, and it has been declared before the Court that this Decree was not applicable to the said proceedings. Furthermore, during the period from October 4th to the beginning of February, 1949, Peru was in a state of siege.

On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian Government of the asylum granted to Haya de la Torre, at the same time he asked that a safe-conduct be issued to enable the refugee to leave the country. On January 14th, he further stated that the refugee had been qualified as a political refugee. The Peruvian Government disputed this qualification and refused to grant a safe-conduct. A diplomatic correspondence ensued which terminated in the signature, in Lima, on August 31st, 1949, of an Act by which the two Governments agreed to submit the case to the International Court of Justice.

Colombia maintained before the Court that, according to the Convention in force - the Bolivarian Agreement of 1911 on Extradition, the Havana Convention of 1928 on Asylum the Montevideo Convention of 1933 on Political Asylum - and according to American International Law, she was entitled to qualify the nature of the offence for the purposes of the asylum. In this connection, the Court considered that, if the qualification in question were provisional, there could be no doubt on that point: the diplomatic representative would consider whether the required conditions had been satisfied, he would pronounce his opinion and if that opinion were contested, a controversy would then arise which might be settled according to the methods provided by the Parties.

But it resulted from the proceedings in the case that Colombia claimed the right of unilateral and definitive qualification binding upon Peru. The first of the Treaties which it invoked - the Bolivarian Agreement, which is the Treaty on extradition - confined itself in one Article to recognizing the institution of asylum in accordance with the principles of international law. But these principles do not entail the right of unilateral qualification. On the other hand, when the Bolivarian Agreement laid down rules for extradition, it was not

possible to deduce from them conclusions concerning diplomatic asylum. In the case of extradition, the refugee was on the territory of the State of refuge: if asylum were granted to him, such decision would not derogate from the sovereignty of the States in which the offence was committed. On the contrary, in the case of diplomatic asylum, the refugee was on the territory of the State in which he had committed the offence: the decision to grant asylum derogated from the sovereignty of the territorial State and removed the offender from the jurisdiction of that State.

As for the second treaty invoked by Colombia - the Havana Convention - it did not recognize the right of unilateral qualification either explicitly or implicitly. The third treaty the Convention of Montevideo - had not been ratified by Peru and could be invoked against that country.

The Colombian Government has finally invoked ‘American International law in General’. In addition to the rules arising from agreements, it has relied on an alleged regional or local custom to Latin American States.

The party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party, that it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial state. This follows from Article 38 of the Statute of the Court, which refers to international custom as evidence of a general practice accepted as law.

Colombia had failed to prove the existence, either regionally or locally, of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. The facts submitted to the Court disclosed too much contradiction and fluctuation to make it possible to discern therein a usage peculiar to Latin America and accepted as law.

It therefore followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru.

Colombia also maintained that Peru was under the obligation to issue a safe-conduct to enable the refugee to leave the country in safety. The Court, setting aside for the time being the question of whether asylum was regularly granted and maintained, noted that the clause in the Havana Convention which provided guaranties for the refugee was applicable solely to a case where the territorial State demanded the departure of the refugee from its territory: it was only after such a demand that the diplomatic Agent who granted asylum could, in turn, require a safe-conduct. There was, of course, a practice according to which the diplomatic Agent immediately requested a safe-conduct, which was granted to him: but this practice, which was to be explained by reasons of expediency, laid no obligation upon the territorial State.

In the present case, Peru had not demanded the departure of the refugee and was therefore not bound to deliver a safe-conduct.

In a counter-claim, Peru had asked the Court to declare that asylum had been granted to Haya de la Torre in violation of the Havana Convention, first, because Haya de la Torre was

accused, not of a political offence but of a common crime and, secondly, because the urgency which was required under the Havana Convention in order to justify asylum was absent in that case.

Having observed that Peru had at no time asked for the surrender of the refugee, the Court examined the first point. In this connection, the Court noted that the only charge against the refugee was that of military rebellion, which was not a common crime. Consequently, the Court rejected the counter-claim of Peru on that point, declaring it to be ill-founded.

On the question of urgency, the Court, having observed that the essential justification of asylum lay in the imminence or persistence of a danger to the person of the refugee, analysed the facts of the case.

Three months had elapsed between the military rebellion and the grant of asylum. There was no question of protecting Haya de la Torre for humanitarian considerations against the violent and uncontrolled action of irresponsible elements of the population, the danger which confronted Haya de la Torre was that of having to face legal proceedings. The Havana Convention was not intended to protect a citizen who had plotted against the institutions of his country from regular legal proceedings. It was not sufficient to be accused of a political offence in order to be entitled to receive asylum; asylum could only intervene against the action of justice in cases where arbitrary action was substituted for the rule of law. It had not been proved that the situation in Peru at the time implied the subordination of justice to the executive or the abolition of judicial guarantees.

Besides, the Havana Convention was unable to establish a legal system which would guarantee to persons accused of political offences the privilege of evading their national jurisdiction. Such a conception would come into conflict with one of the oldest traditions of Latin America, that of non-intervention. For if the Havana Convention had wished to ensure general protection to all persons prosecuted for political crimes in the course of revolutionary events, for the sole reason that it should be presumed that such events interfere with the administration of justice, this would lead to foreign interference of a particularly offensive nature in the domestic affairs of States.

As for the numerous cases cited by Colombia, the Court was of opinion that considerations of convenience or political expediency seemed to have prompted the territorial State to recognize asylum without such as decision being dictated by any feeling of legal obligation. Asylum in Latin America was an institution which owed its development largely to extra-legal factors.

Whilst declaring that at the time at which asylum was granted, on January 3rd, 1949, there was no case of urgency within the meaning of the Havana Convention, the Judgment declared that this in no way constituted a criticism of the Colombian Ambassador. His appreciation of the case was not a relevant factor to the question of the validity of the asylum: only the objective reality of the facts was of importance.

The Court therefore came to the conclusion that the grant of asylum was not in conformity with Article 2, paragraph 2, of the Havana Convention.

EFFECT OF AWARDS OF COMPENSATION MADE BY THE UNITED NATIONS ADMINISTRATIVE TRIBUNAL

ADVISORY OPINION OF I.C.J.

In 1953 the Administrative Tribunal of the United Nations gave a numbers of awards in the matter of complaints of certain members of the Secretariat of the United Nations who had been discharged by the Secretary-General of the United Nations and who alleged that their discharge was illegal. In some of these cases the Tribunal found that the complaint was justified and made awards in favour of the officials concerned. The question having arisen before the General Assembly whether it was bound to comply with the awards, the General Assembly decided, in December 1953, to submit the following legal questions to the International Court of Justice for an Advisory Opinion:

“(1) Having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant instruments and to the relevant records, has the General Assembly the right on any grounds to refuse to give effect to an award of compensation made by that Tribunal in favour of a staff member of the United Nations whose contract of service has been terminated without his assent?

(2) If the answer given by the Court to question (1) is in the affirmative, what are the principal grounds upon which the General Assembly could lawfully exercise such a right?”

The first question is strictly limited in scope. It relates solely to an award made by the Administrative Tribunal of the United Nations in favour of a staff member of the United Nations whose contract of service has been terminated without his assent. According to Article 2, paragraph I, of the Statute of that Tribunal, it ‘shall be competent to hear and pass judgment upon applications alleging non-observance of contracts of employment of staff members of the Secretariat of the United Nations or of the terms of appointment of such staff member’. A comparison between this provision and the terms of the first question submitted to the Court shows that an award as defined by that question must be considered as falling within the competence of the Tribunal as defined by Article 2. A claim arising out of the termination of a contract of service without the assent of the staff member must, in fact, either fall within the term ‘non-observance of contracts of employment’, or relate to ‘the terms of appointment’ of the staff member. The Question concerns, in other words, only awards which are made within the limits of the competence of the Tribunal as determined by Article 2. The Court does not therefore seem to be requested to express its view with regard to awards which may exceed the scope of that statutory competence.

The first question is further limited to awards which grant compensation to a staff member, and it relates solely to awards in favour of a staff member whose contract of service has been terminated without his assent. It does not include awards in other disputes arising out of a contract of service. The Court is requested to say whether the General Assembly has the right to refuse to give effect to an award as defined by the question. The term ‘right’ must signify legal right. The Court is asked to say whether the General Assembly is legally entitled

to refuse to give effect to such awards. The Court is not called upon to express any view with regard to the particular awards which have given rise to the present Advisory Opinion.

This examination of the first question shows that the Court is requested to consider the general and abstract question whether the General Assembly is legally entitled to refuse to give effect to an award of compensation made by the Administrative Tribunal, properly constituted and acting within the limits of its statutory competence. The answer to this question depends on the provisions of the Statute of the Tribunal as adopted by the General Assembly on November 24, 1949, and on the Staff Regulations and Rules as in force on December 9, 1953. But the Court will also take into account the amendments which were made to the Statute on the latter date. The Court will first consider whether the Tribunal is established either as a judicial body, or as an advisory organ or a mere subordinate committee of the General Assembly.

Article 1 of the Statute provides : ‘A Tribunal is established by the present Statute to be known as the United Nations Administrative Tribunal’. This Tribunal shall, according to Article 2, paragraph 1, ‘be competent to hear and pass judgment upon applications’, whereupon the paragraph determines the limits of the Tribunal’s competence as already mentioned above.

Article 2, paragraph 3, prescribes:

‘In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the decision of the Tribunal’.

Article 10 contains the following provisions :

2. The judgments shall be final and without appeal’.

3. The judgments shall state the reasons on which they are based’.

These provisions and the terminology used are evidence of the judicial nature of the Tribunal. Such terms as ‘tribunal’, ‘judgment’, competence to ‘pass judgment upon applications’, are generally used with respect to judicial bodies. The above-mentioned provisions of Articles 2 and 10 are of an essentially judicial character and conform with rules generally laid down in statutes or laws issued for courts of justice, such as, for instance, in the Statute of the International Court of Justice, Article 36, paragraph 6, Article 56, paragraph 1, Article 60, first sentence. They provide a striking contrast to Staff Rule 111.1 of the United Nations.

These provisions prescribe both in the original and in the amended text that the Tribunal shall, if it finds that the application is well founded, order the rescinding of the decision contested or the specific performance of the obligation invoked. As the power to issue such orders to the chief administrative officer of the Organization could hardly have been conferred on an advisory organ or a subordinate committee, these provisions confirm the judicial character of the Tribunal. The amended text contains certain modifications of the Tribunal’s powers and procedure, but these modifications have no bearing upon the judicial nature of its functions.

This examination of the relevant provisions of the Statute shows that the Tribunal is established, not as an advisory organ or a mere subordinate committee of the General

Assembly, but as an independent and truly judicial body pronouncing final judgments without appeal within the limited field of its functions.

According to a well-established and generally recognized principle of law, a judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute. It must therefore be examined who are to be regarded as parties bound by an award of compensation made in favour of a staff member of the United Nations whose contract of service has been terminated without has assent.

Such a contract of service is concluded between the staff member concerned and the Secretary-General in his capacity as the chief administrative officer of the United Nations Organization, acting on behalf of that Organization as its representative. When the Secretary-General concludes such a contract of service with a staff member, he engages the legal responsibility of the Organization, which is the juridical person on whose behalf he acts. If he terminates the contract of service without the assent of the staff member and this action results in a dispute which is referred to the Administrative Tribunal, the parties to this dispute before the Tribunal are the staff member concerned and the United Nations Organization, represented by the Secretary-General, and these parties will become bound by the judgment of the Tribunal. This judgment is, according to Article 10 of the Tribunal’s Statute, final and without appeal. The Statute has provided for no kind of review. As this final judgment has binding force on the United Nations Organization as the juridical person responsible for the proper observance of the contract of service, that Organization becomes legally bound to carry out the judgment and to pay the compensation awarded to the staff member. It follows that the General Assembly, as an organ of the United Nations, must likewise be bound by the judgment.

The Statute of the Administrative Tribunal has not provided for any kind of review of judgments, which according to Article 10, paragraph 2, shall be final and without appeal. This rule is similar to the corresponding rule in the Statute of the Administrative Tribunal of the League of Nations, Article VI, paragraph 1, which equally prescribed that ‘judgments shall be final and without appeal’. The report of the Supervisory Commission, proposing the Statute of this Tribunal of the League of Nations, shows that the omission of any provision for a review of judgments was deliberate. The report stated :

No provision for the revision of judgments of the Tribunal is inserted in the statute. It is considered that, in the interests of finality and of the avoidance of vexatious proceedings, the Tribunal’s judgments should be final and without appeal as is provided in Article VI, paragraph 1.

The present Advisory Opinion deals with a different legal situation. It concerns judgments pronounced by a permanent judicial tribunal established by the General Assembly, functioning under a special statute and within the organized legal system of the United Nations, and dealing exclusively with internal disputes between the members of the staff and the United Nations represented by the Secretary-General. In order that the judgments pronounced by such a judicial tribunal could be subjected to review by any body other than the tribunal itself, it would be necessary, in the opinion of the Court, that the statute of that tribunal or some other legal instrument governing it should contain an express provision to

the effect. The General Assembly has the power to amend the Statute of the Administrative Tribunal by virtue of Article 11 of that Statute and to provide for means of redress by another organ. But as no such provisions are inserted in the present Statute, there is no legal ground upon which the General Assembly could proceed to review judgments already pronounced by that Tribunal. Should the General Assembly contemplate, for dealing with future disputes, the making of some provision for the review of the awards of the Tribunal, the Court is of opinion that the General Assembly itself, in view of its composition and functions, could hardly act as a judicial organ — considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them — all the more so as one party to the disputes is the United Nations Organization itself.

The Establishment of the Administrative Tribunal and the Implied Powers of the General Assembly

The Court must now examine the principal contentions which have been put forward, in the written and in the oral statements, by the Governments that take the position that there are grounds which would justify the General Assembly in refusing to give effect to awards of the Administrative Tribunal.

The legal power of the General Assembly to establish a tribunal competent to render judgments binding on the United Nations has been challenged. Accordingly, it is necessary to consider whether the General Assembly has been given this power by the Charter.

There is no express provision for the establishment of judicial bodies or organs and no indication to the contrary. However, in its Opinion - Reparation for Injuries suffered in the

Service of the United Nations, Advisory Opinion: I. C.J. Reports 1949. p. 182 – the Court

said:

‘Under international law, the Organization must be deemed to have powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties’.

The Court must therefore begin by enquiring whether the provisions of the Charter concerning the relations between the staff members and the Organization imply for the Organization the power to establish a judicial tribunal to adjudicate upon disputes arising out of the contracts of service.

Under the provisions of Charter XV of the Charter, the Secretariat, which is one of the principle organs of the United Nations, comprises the Secretary-General and the staff. The Secretary-General is appointed by the General Assembly, upon the recommendation of the Security Council, and he is ‘the chief administrative officer of the Organization’. The staff member are ‘appointed by the Secretary-General under regulations established by the General Assembly’. In the words of Article 101(3) of the Charter, ‘The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity.

The contracts of service between the Organization and the staff members are contained in letters of appointment. Each appointment is made subject to terms and conditions provided in

the Staff Regulations and Staff Rules, together with such amendments as may be made from time to time.

When the Secretariat was organized, a situation arose in which the relations between the staff members and the Organization were governed by a complex code of law. This code consisted of the Staff Regulations established by the General Assembly, defining the fundamental rights and obligations of the staff, and the Staff Rules, made by the Secretary-General in order to implement the Staff Regulations. It was inevitable that there would be disputes between the Organization and staff members as to their rights and duties. The Charter contains no provision which authorizes any of the principle organs of the United Nations to adjudicate upon these disputes, and Article 105 secures for the United Nations jurisdictional immunities in national courts. It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.

In these circumstances, the Court finds that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter.

Limits of the Implied Powers of the General Assembly

But that does not dispose of the problem before the Court. Some of the Governments that take the position that there are grounds which would justify the General Assembly in refusing to give effect to awards, agree that the powers of the General Assembly, and particularly its power to establish regulations under Article 101, imply the power to set up an administrative tribunal. They agree that the General Assembly would be able to establish a tribunal competent to hear and decide staff grievances, to prescribe its jurisdiction, and to authorize it to give a final decision, in the sense that no appeal could be taken as of right. They nevertheless contend that the implied power does not enable the General Assembly to establish a tribunal with authority to make decisions binding on the General Assembly itself.

In the first place, it is contended that there was no need to go so far, and that an implied power can only be exercised to the extent that the particular measure under consideration can be regarded as absolutely essential. There can be no doubt that the General Assembly in the exercise of its power could have set up a tribunal without giving finality to its judgments. In fact, however, it decided, after long deliberation, to invest the Tribunal with power to render judgments which would be ‘final and without appeal’, and which would be binding on the United Nations. The precise nature and scope of the measures by which the power of creating a tribunal was to be exercised, was a matter for determination by the General Assembly alone. In the second place, it has been argued that, while an implied power of the General Assembly to establish, an administrative tribunal may be both necessary and essential, nevertheless, an implied power to impose legal limitations upon the General Assembly’s express Charter powers is not legally admissible.

It has been contended that the General Assembly cannot, by establishing the Administrative Tribunal, divest itself of the power conferred by paragraph (1) of Article 17 of the Charter, which reads:

‘The General Assembly shall consider and approve the budget of the Organization.’ This provision confers a power on the General Assembly, for the exercise of which Article 18 requires the vote of a two-thirds majority. Accordingly, the establishment of a tribunal competent to make an award of compensation to which the General Assembly was bound to give effect would, it has been argued, contravene the provisions relating to the budgetary power. The Court is unable to accept this contention.

The Court notes that Article 17 of the Chapter appears in a section of Chapter IV relating to the General Assembly, which is entitled ‘Functions and Powers’. This Article deals with a function of the General Assembly and provides for the consideration and approval by it of the budget of the Organization. Consideration of the budget is thus an act which must be performed and the same is true of its approval, for without such approval there can be no budget.

But the function of approving the budget does not mean that the General Assembly has an absolute power to approve or disapprove the expenditure proposed to it; for some part of that expenditure arises out of obligations already incurred by the Organization, and to this extent the General Assembly has no alternative but to honour these engagements. The question, therefore, to be decided by the Court is whether these obligations comprise the awards of compensation made by the Administrative Tribunal in favour of staff members. The reply to this question must be in the affirmative. The obligatory character of these awards has been established by the considerations set out above relating to the authority of res judicata and the binding effect of the judgments of this Tribunal upon the United Nations Organization.

The Court therefore considers that the assignment of the budgetary function to the General Assembly cannot be regarded as conferring upon it the right to further to give effect to the obligation arising out of an award of the Administrative Tribunal.

It has also been contended that the implied power of the General Assembly to establish a tribunal cannot be carried so far as to enable the tribunal to intervene in matters falling within the province of the Secretary-General. The Court cannot accept this contention.

The General Assembly could at all times limit or control the powers of the Secretary-General in staff matters, by virtue of the provisions of Article 101. Acting under powers conferred by the Charter, the General Assembly authorized the intervention of the Tribunal to the extent that such intervention might result from the exercise of jurisdiction conferred upon the Tribunal by its Statute. Accordingly, when the Tribunal decides that particular action by the Secretary- General involves a breach of the contract of service, it is in no sense intervening in a Charter power of the Secretary-General, because the Secretary-General’s legal powers in staff matters have already been limited in this respect by the General Assembly.

A similar problem is involved in the contention that the General assembly cannot authorize and the Secretary-General cannot enter into contracts of service which are not in

conformity with the Charter. The Staff Regulations are made a part of the contracts of service and No. 11.2 reads as follows:

‘The United Nations Administrative Tribunal shall, under conditions prescribed in its Statute, hear and pass judgment upon applications from staff members alleging non-observance of their terms of appointment, including all pertinent regulations and rules’.

It is contended that the incorporation, in the contracts of service, of the right to rely on the Stature of the Administrative Tribunal would conflict with the powers conferred on the General Assembly and on the Secretary- General by the Charter. In view of the foregoing considerations, the Court cannot accept this contention. There can be no doubt that, by virtue of the terms thus incorporated in the contracts of service, and so long as the Statute of the Administrative Tribunal in its present form is in force, the staff members are entitled to resort to the Tribunal and rely on its judgments.

In the third place, the view has been put forward that the Administrative Tribunal is a subsidiary, subordinate, or secondary organ; and that, accordingly, the Tribunal’s judgments cannot bind the General Assembly which established it.

This view assumes that, in adopting the Statute of the Administrative Tribunal, the General Assembly was establishing an organ which it deemed necessary for the performance of its own functions. But the Court cannot accept this basic assumption. The Charter does not confer judicial functions on the General Assembly and the relations between staff and Organization come within the scope of Chapter XV of the Charter. In the absence of the establishment of an Administrative Tribunal, the function of resolving disputes between staff and Organization could be discharged by the Secretary-General by virtue of the provisions of Articles 97 and 101. Accordingly, in the three years or more preceding the establishment of the Administrative Tribunal, the Secretary-General coped with this problem by means of joint administrative machinery, leading to ultimate decision by himself. By establishing the Administrative Tribunal the General Assembly was not delegating the performance of its own functions; it was exercising a power which it had under the Charter to regulate staff relations. In regard to the Secretariat, the General Assembly is given by the Charter a power to make regulations, but not a power to adjudicate upon, or otherwise deal with particular instances.

It has been argued that an authority exercising a power to make regulations is inherently incapable of creating a subordinate body competent to make decisions binding its creator. There can be no doubt that the Administrative Tribunal is subordinate in the sense that the General Assembly can abolish the Tribunal by repealing the Statute, that it can amend the Statute and provide for review of the future decisions of the Tribunal and that it can amend the Staff Regulations and make new ones. There is no lack of power to deal effectively with any problem that may arise. But the contention that the General Assembly is inherently incapable of creating a tribunal competent to make decisions binding on itself cannot be accepted. It cannot be justified by analogy to national laws, for it is common practice in national legislatures to create courts with the capacity to render decisions legally binding on the legislatures which brought them into being.

The question cannot be determined on the basis of the description of the relationship between the General Assembly and the Tribunal that is by considering whether the Tribunal is to be regarded as a subsidiary, a subordinate, or a secondary organ, or on the basis of the fact that it was established by the General Assembly. It depends on the intention of the General Assembly in establishing the Tribunal, and on the nature of the functions conferred upon it by its Statute. An examination of the language of the Statute of the Administrative Tribunal has show that the General Assembly intended to establish a judicial body, moreover, it had the legal capacity under the Charters to do so.

The Practice of the League of Nations as a Precedent

The view has been advanced that the Court should follow what has been called the precedent established by the League of Nations in 1946. On that occasion, the Assembly of the League rejected certain awards of its Administrative Tribunal. It is unnecessary to consider the question whether the Assembly, which in very special circumstances was winding up the League, was justified in rejecting those awards. The cases adjudicated upon by the Tribunal of the League, and the circumstances in which they arose, are different from those which led to the request for this Opinion. Moreover, the cases arose under the Statute of the Administrative Tribunal of the League, and not under the Statute of the Administrative Tribunal of the United Nations, and the Assembly was acting under the Covenant and not under the Charter.

In view of the complete lack of identity between the two situations, and of the conclusions already drawn by the Court from the Charter and the Statute of the Administrative Tribunal of the United Nations and other relevant instruments and records, the Court cannot regard the action of the Assembly of the League in 1946 as an applicable precedent or as an indication of the intention of the General Assembly when the Statute of the Administrative Tribunal was adopted in 1949.

TEMPLE OF PREAH VIHEAR CASE (Merits)

Cambodia v. Thailand

Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia and Thailand, were instituted on 6 October 1959 by an Application of the Government of Cambodia; the Government of Thailand having raised two preliminary objections, the Court, by its Judgment of 26 May 1961, found that it had jurisdiction.

In its Judgment, the Court found that the subject of the dispute was sovereignty over the region of the Temple of Preah Vihear. This ancient sanctuary, partially in ruins, stood on a promontory of the Dangrek range of mountains which constituted the boundary between Cambodia and Thailand. The dispute had its fons et origo in the boundary settlements made in the period 1904-1908 between France, then conducting the foreign relations of Indo-China, and Siam. The application of the Treaty of 13 February 1904 was, in particular, involved. That Treaty established the general character of the frontier the exact boundary of which was to be delimited by a Franco-Siamese Mixed Commission

In the eastern sector of the Dangrek range, in which Preah Vihear was situated, the frontier was to follow the watershed line. For the purpose of delimiting that frontier, it was agreed, at a meeting held on 2 December 1906, that the Mixed Commission should travel along the Dangrek range carrying out all the necessary reconnaissance, and that a survey officer of the French section of the Commission should survey the whole of the eastern part of the range. It had not been contested that the Presidents of the French and Siamese sections duly made this journey, in the course of which they visited the Temple of Preah Vihear. In January-February 1907, the President of the French section had reported to his Government that the frontier-line had been definitely established. It therefore seemed clear that a frontier had been surveyed and fixed, although there was no record of any decision and no reference to the Dangrek region in any minutes of the meetings of the Commission after 2 December 1906. Moreover, at the time when the Commission might have met for the purpose of winding up its work, attention was directed towards the conclusion of a further Franco-Siamese boundary treaty, the Treaty of 23 March 1907.

The final stage of the delimitation was the preparation of maps. The Siamese Government, which did not dispose of adequate technical means, had requested that French officers should map the frontier region. These maps were completed in the autumn of 1907 by a team of French officers, some of whom had been members of the Mixed Commission, and they were communicated to the Siamese Government in 1908. Amongst them was a map of the Dangrek range showing Preah Vihear on the Cambodian side. It was on that map (filed as Annex I to its Memorial) that Cambodia had principally relied in support of her claim to sovereignty over the Temple. Thailand, on the other hand, had contended that the map, not being the work of the Mixed Commission, had no binding character; that the frontier indicated on it was not the true watershed line and that the true watershed line would place the Temple in Thailand, that the map had never been accepted by Thailand or, alternatively, that

if Thailand had accepted it she had done so only because of a mistaken belief that the frontier indicated corresponded with the watershed line.

The Annex I map was never formally approved by the Mixed Commission, which had ceased to function some months before its production. While there could be no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector, the Court nevertheless concluded that, in its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to represent the outcome of the work of delimitation; since there was no reaction on the part of the Siamese authorities, either then or for many years, they must be held to have acquiesced. The maps were moreover communicated to the Siamese members of the Mixed Commission, who said nothing. to the Siamese Minister of the Interior, Prince Damrong, who thanked the French Minister in Bangkok for them, and to the Siamese provincial governors, some of whom knew of Preah Vihear. If the Siamese authorities accepted the Annex I map without investigation, they could not now plead any error vitiating the reality of their consent.

The Siamese Government and later the Thai Government had raised no query about the Annex I map prior to its negotiations with Cambodia in Bangkok in 1958. But in 1934-1935 a survey had established a divergence between the map line and the true line of the watershed, and other maps had been produced showing the Temple as being in Thailand: Thailand had nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on the map, irrespective of its correspondence with the watershed line. Thailand had stated that having been, at all material times, in possession of Preah Vihear, she had had no need to raise the matter; she had indeed instanced the acts of her administrative authorities on the ground as evidence that she had never accepted the Annex I line at Preah Vihear. But the Court found it difficult to regard such local acts as negating the consistent attitude of the central authorities. Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received there by the French Resident for the adjoining Cambodian province, Siam failed to react.

From these facts, the court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be given now would be the same.

The Court therefore felt bound to pronounce in favour of the frontier indicated on the Annex I map in the disputed area and it became unnecessary to consider whether the line as mapped did in fact correspond to the true watershed line.

In its Judgment the Court, by nine votes to three, found that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that Thailand was under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory.

By seven votes to five, the Court found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities.

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

Vellore Citizens' Welfare Forum v. Union of India

KULDIP SINGH, J. - Petition - public interest - under Article 32 of the Constitution of

India has been filed by Vellore Citizens’ Welfare Forum and is directed against the pollution which is being caused by enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. It is stated that the tanneries are discharging untreated effluent into agricultural fields, roadsides, waterways and open lands. The untreated effluent is finally discharged in River Palar which is the main source of water supply to the residents of the area. According to the petitioner the entire surface and subsoil water of River Palar has been polluted resulting in non-availability of potable water to the residents of the area. It is stated that the tanneries in the State of Tamil Nadu have caused environmental degradation in the area. According to the preliminary survey made by the Tamil Nadu Agricultural University Research Centre, Vellore nearly 35,000 hectares of agricultural land in the tanneries belt has become either partially or totally unfit for cultivation. It has been further stated in the petition that the tanneries use about 170 types of chemicals in the chrome tanning processes. The said chemicals include sodium chloride, lime, sodium sulphate, chlorium (sic) sulphate, fat, liquor, ammonia and sulphuric acid besides dyes which are used in large quantities. Nearly 35 litres of water is used for processing one kilogram of finished leather, resulting in dangerously enormous quantities of toxic effluents being let out in the open by the tanning industry. These effluents have spoiled the physico-chemical properties of the soil and have contaminated groundwater by percolation.

2. Along with the affidavit dated 21-7-1992 filed by Deputy Secretary to Government, Environment and Forests Department of Tamil Nadu, a list of villages affected by the tanneries has been attached. The list mentions 59 villages in the three divisions of Thirupathur, Vellore and Ranipet. There is acute shortage of drinking water in these 59 villages and as such alternative arrangements were being made by the Government for the supply of drinking water.

9. It is no doubt correct that the leather industry in India has become a major foreign exchange earner and at present Tamil Nadu is the leading exporter of finished leather accounting for approximately 80 per cent of the country’s export. Though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health-hazard. It cannot be permitted to expand or even to continue with the present production unless it tackles by itself the problem of pollution created by the said industry.

10. The traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer. In the international sphere, “Sustainable Development” as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called “Our Common Future”.

The Commission was chaired by the then Prime Minister of Norway, Ms G.H. Brundtland and as such the report is popularly known as “Brundtland Report”. In 1991 the World Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called “Caring for the Earth” which is a strategy for sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the history — deliberating and chalking out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio “Sustainable Development” has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. “Sustainable Development” as defined by the Brundtland Report means “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”. We have no hesitation in holding that “Sustainable Development” as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists.

11. Some of the salient principles of “Sustainable Development”, as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development”. The “Precautionary Principle” - in the context of the municipal law - means:

(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(iii) The “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.

12. “The Polluter Pays Principle” has been held to be a sound principle by this Court in

Indian Council for Enviro-Legal Action v. Union of India [(1996) 3 SCC 212]. The Court

observed:

“(W)e are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country”.

The Court ruled that:

“... once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on”. Consequently the polluting industries are “absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas”. The “Polluter Pays Principle” as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable Development” and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

13. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:

“47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of

nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

48A. Protection and improvement of environment and safeguarding of forests and wildlife.-The State shall endeavour to protect and improve the environment and

to safeguard the forests and wildlife of the country.

51A. (g) to protect and improve the natural environment including forests, lakes,

rivers and wildlife, and to have compassion for living creatures.”

Apart from the constitutional mandate to protect and improve the environment there are plenty of post-independence legislations on the subject but more relevant enactments for our purpose are: the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act).

14. In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country.

15. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. To support we may refer to Justice

H.R. Khanna’s opinion in A.D.M. v. Shivakant Shukla [AIR 1976 SC 1207]; Jolly George

Varghese case [AIR 1980 SC 470] and Gramophone Co. case [AIR 1984 SC 667].

16. The constitutional and statutory provisions protect a person’s right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment.

17. Our legal system having been founded on the British common law the right of a person to a pollution-free environment is a part of the basic jurisprudence of the land.

[The Supreme Court held that sustainable development, precautionary principle and polluter pays principle, being customary norms of international law, are part of Indian environmental law and therefore, have full legal force.]