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Training Manual on International Environmental Law. UNEP.

1
Chapter 3
3. PRINCIPLES AND
CONCEPTS OF
INTERNATIONAL
ENVIRONMENTAL LAW
I. Introduction
1. This chapter provides an overview of the
main principles (i.e. fundamental doctrines
on which others are based, or rules of
conduct) and concepts (i.e. central unifying
ideas or themes) in international
environmental law. It identifies important
emerging principles and concepts,
describes the roles they play, and provides
examples to illustrate some of the ways in
which they have been applied. In doing so,
it provides a backdrop for the rest of this
UNEP Training Manual and assists the
user in better understanding why specific
approaches to protecting the environment
have come about and how they work.
Understanding the basic principles and
concepts will facilitate a sound
appreciation of many of the treaties
reviewed in this Manual, and in the
development and consolidation of
international environmental law.
Comprehension of modern and evolving
international environmental law and its
different facts, needs not only knowledge
of treaty law, but also the translation of
principles and concepts into legally
binding rules and instruments.
II. Overview of International Environmental
Law Principles and Concepts
2. Principles and concepts embody a common
ground in international environmental law;
and they both reflect the past growth of
international environmental law and affect
its future evolution. Principles and concepts
play important roles in international
environmental law, which itself is one of the
most rapidly evolving areas of public
international law. They can indicate the
essential characteristics of international
environmental law and its institutions,
provide guidance in interpreting legal
norms, constitute fundamental norms, and
fill in gaps in positive law. Principles and
concepts also appear in national
constitutions and laws; and they are referred
to in, and influence, international and
national jurisprudence. Today, almost all
major binding and non-legally binding
international environmental instruments
contain or refer to principles or concepts and
are engines in the evolving environmental
law.
3. The development of environmental law
during the past three decades has led to the
emergence of an increasing number of
concepts, principles and norms (i.e. binding
rules of international law). The reason why
principles and concepts play such important
role is linked to the origin and development
of international environmental law.
Environmental law has developed mainly in
a piecemeal fashion, not in a structured
orderly way, as ad hoc responses to
environmental threats and challenges.
Indeed, in the case of UNEP, this was the
way till 1982 when the first ten year
programme of environmental law, often
referred to as Montevideo Programme I, was
agreed. Thereafter this has been prepared
and approved by the Governing Council for
each subsequent ten years: Montevideo
Programme II in 1993 and Montevideo
Programme III in 2001. There are many
international arenas and many international
instruments dealing with specific
environmental problems. Not surprisingly,
therefore, principles and concepts have been
repeated or referred to in many different
treaties or non-binding instruments. The
frequent inclusion of these principles and
concepts in international legal instruments
reinforces them and, together with state
practice, will continue to contribute to the
creation of a global framework for
international environmental law.

4. Of particular importance are the principles
established at two important United Nations
conferences, the 1972 Conference on the
Human Environment (Stockholm
Conference) and the 1992 United Nations
Conference on Environment and
Development (UNCED) in Rio de Janeiro.
Both of these conferences produced
declarations of principles (the 1972
Stockholm Declaration and the 1992 Rio
Declaration, respectively), which were
adopted by the United Nations General
Assembly. Together with the hundreds of
international agreements that exist relating
to protecting the environment (including
human health), the principles in the 1972
Stockholm Declaration and 1992 Rio
Training Manual on International Environmental Law. UNEP. 2
Declaration are widely- regarded as the
underpinnings of international
environmental law.

5. The Rio Declaration contains a preamble
and twenty-seven international
environmental law principles that guide the
international community in its efforts to
achieve sustainable development. Since the
adoption of the Rio Declaration, major
developments in international environmental
law have taken place that affect the
definition, status and impact of principles
and concepts in international environmental
law. These developments include the
negotiation and entry into force of several
major multilateral agreements. (See chapters
1, 4, 7, 9, 10, 11, 12, 13, 14, 15 and 19 of this
Manual).

6. A general characteristic of present
international environmental law is the
utilization of non-binding international
instruments. Such texts are often easier to
negotiate and amend in the light of new
problems where scientific knowledge and
public awareness can be the major factors
pressing for international action. Principles
in non-binding texts can help develop
international environmental law and directly
or indirectly give birth to new legal rules in
conventions and/or customary law.

7. The legal status of international
environmental law principles and concepts is
varied and may be subject to disagreement
among states. Some principles are firmly
established in international law, while others
are emerging and only in the process of
gaining acceptance, representing more
recent concepts. Some principles are more in
the nature of guidelines or policy directives
which do not necessarily give rise to specific
legal rights and obligations. Principles have
acquired recognition, among other means,
through state practice, their incorporation in
international legal instruments, their
incorporation in national laws and
regulations, and through judgements of
courts of law and tribunals. Some principles
are embodied or specifically expressed in
global or regionally binding instruments,
while others are predominantly based in
customary law. In many cases it is difficult
to establish the precise parameters or legal
status of a particular principle. The manner
in which each principle applies to a
particular activity or incident typically must
be considered in relation to the facts and
circumstances of each case, taking into
account of various factors including its
sources and textual context, its language,
the particular activity at issue, and the
particular circumstances in which it occurs,
including the actors and the geographical
region, since the juridical effect of principles
and concepts may change from one legal
system to another.

8. For the reasons outlined in the preceding
paragraph, this chapter does not address the
question of whether a particular principle is,
in fact, binding international law. In order to
avoid confusion in this respect, part III,
below, refers to principles and concepts
jointly as concepts unless referring to a
particular text, e.g. one of the Rio
Principles.

9. Some scholars believe the development of a
single comprehensive treaty of fundamental
environmental norms may be a future
solution to counteract fragmentation and
provide clarity about the legal status of
various principles. Such an overarching
agreement may provide the legal framework
to support the further integration of various
aspects of sustainable development,
reinforcing the consensus on basic legal
norms both nationally and internationally. It
could thus create a single set of fundamental
principles and concepts to guide states,
international organizations, NGOs and
individuals. It could consolidate and codify
many widely accepted, but scattered,
principles and concepts contained in non-
binding texts on environment and
sustainable development and fill in gaps in
existing law. It could also facilitate
institutional and other linkages among
existing treaties and their implementation,
and be taken into account in judicial and
arbitral decisions, negotiations of new
international legal instruments, and national
law-making.

10. Finally, it is important to recognize that
international environmental law is an
inseparable part of public international law.
Public international law principles such as
the duty to negotiate in good faith, the
principle of good neighbourliness and
notification, and the duty to settle disputes
peacefully, thus may pertain to a situation
Training Manual on International Environmental Law. UNEP. 3
regardless of its designation as
environmental and may affect the
evolution of international environmental law
principles more generally. At the same time,
the development of international
environmental law principles and concepts
may affect the development of principles in
other areas of international law. The
application and, where relevant,
consolidation and further development of the
principles and concepts of international
environmental law listed in this chapter, as
well as of other principles of international
law, will be instrumental in pursuing the
objective of sustainable development.
III. Emerging Principles and Concepts
11. The principles and concepts discussed in this
chapter are:
1. Sustainable Development, Integration and
Interdependence
2. Inter-Generational and Intra-Generational
Equity
3. Responsibility for Transboundary Harm
4. Transparency, Public Participation and
Access to
Information and Remedies
5. Cooperation, and Common but
Differentiated
Responsibilities
6. Precaution
7. Polluter Pays Principle
8. Access and Benefit Sharing regarding
Natural Resources
9. Common Heritage and Common Concern of
Human kind
10. Good Governance

1. Sustainable Development, Integration and
Interdependence
12. The international community
recognized sustainable development as
the overarching paradigm for
improving quality of life in 1992, at
UNCED. Although sustainable
development is susceptible to
somewhat different definitions, the
most commonly accepted and cited
definition is that of the Brundtland
Commission on Environment and
Development, which stated in its 1987
Report, Our Common Future, that
sustainable development is
development that meets the needs of
the present without compromising the
ability of future generations to meet
their own needs. The parameters of
sustainable development are clarified in
Agenda 21 and the Rio Declaration,
both adopted at UNCED, and in
subsequent international regional and
national instruments.
13. Principle 4 of the Rio Declaration
provides: In order to achieve
sustainable development,
environmental protection shall
constitute an integral part of the
development process and cannot be
considered in isolation from it.
Principle 25 states that Peace,
development and environmental
protection are interdependent and
indivisible. Principles 4 and 25 make
clear that policies and activities in
various spheres, including
environmental protection, must be
integrated in order to achieve
sustainable development. They also
make clear that the efforts to improve
society, including those to protect the
environment, achieve peace, and
accomplish economic development, are
interdependent. Principles 4 and 25
thus embody the concepts of
integration and interdependence.
14. The concepts of integration and
interdependence are stated even more
clearly in paragraph 6 of the 1995
Copenhagen Declaration on Social
Development, which introduction
states that economic development,
social development and environmental
protection are interdependent and
mutually reinforcing components of
sustainable development, which is the
framework for our efforts to achieve a
higher quality of life for all people....
Paragraph 5 of the 2002 Johannesburg
Declaration on Sustainable
Development confirms this, by stating
that we assume a collective
responsibility to advance and
strengthen the interdependent and
mutually reinforcing pillars of
sustainable development (economic
development, social development and
environmental protection) at the local,
national, regional and global levels.
Training Manual on International Environmental Law. UNEP. 4
Integration was one of the main themes
discussed at the 2002 Johannesburg
World Summit on Sustainable
Development, with particular emphasis
on eradicating poverty. One of the
commitments of Millennium
Development Goal number 7 (Ensure
environmental sustainability), is to
Integrate the principles of sustainable
development into country policies and
programmes... Paragraph 30 of the
Millennium Declaration speaks of the
need for greater policy coherence and
increased cooperation among
multilateral institutions, such as the
United Nations, the World Bank, and
the World Trade Organization. The
definition of sustainable development
from the Brundtland Commissions
report, quoted above, indicates the
interdependence of generations, as well.
On the basis of these and other
international instruments, it is clear
that integration and interdependence
are fundamental to sustainable
development.
15. The concepts of integration and
interdependence in international
environmental law are wholly
consistent with the nature of the
biosphere, i.e. the concentric layers of
air, water and land on which life on
earth depends. Scientists increasingly
understand the fundamental
interdependence of the various
elements of the biosphere, how changes
in one aspect can affect others, and the
essential roles that nature plays with
respect to human activities and
existence (e.g., purifying water,
pollinating plants, providing food,
providing recreation opportunities, and
controlling erosion and floods). In this
respect, international environmental
law mirrors the most fundamental
infrastructure of human society (i.e.,
the environment).
16. The concept of integration
demonstrates a commitment to moving
environmental considerations and
objectives to the core of international
relations. For example, environmental
considerations are increasingly a
feature of international economic policy
and law: the Preamble to the 1994
World Trade Organization Agreement
mentions both sustainable development
and environmental protection, and
there are numerous regional and global
treaties supporting an approach that
integrates environment and economic
development, such as the 1992
Convention on Biological Diversity
(CBD), the 1994 United Nations
Convention to combat Desertification
in Countries Experiencing Serious
Drought and/or Desertification,
particularly in Africa and the 1997
Kyoto Protocol on Climate Change.
17. At the national level, the concept of
integration of environmental concerns
with all other policy areas is usually
formulated as a procedural rule to be
applied by legislative and
administrative bodies. It is also a
fundamental postulate of most of the
national strategies for sustainable
development. The future may well
witness increased attention to
sustainable development law, in
which the specific laws regarding all
spheres of activity appropriately
integrate environmental, economic and
social considerations.
18. Environmental Impact Assessment
(EIA) has become one of the most
effective and practical tools to support
the implementation of sustainable
development and its integrative
aspects. The great majority of
countries in the world have adopted
informal guidelines or mandatory
regulations, applicable not only to
public projects but often also as a direct
obligation of citizens. In addition, in
many countries informal procedures of
impact assessment for governmental
activities have been developed. EIA is
also widely accepted as a mechanism
for public participation in planning
processes and decision-making and a
tool to provide information and data to
the public regarding projects and other
activities.
19. Also necessary are approaches that take
into account long-term strategies and
that include the use of environmental
and social impact assessment, risk
analysis, cost-benefit analysis and
natural resources accounting. Some
have proposed so-called sustainable
development impact assessments,
which take into account environmental
Training Manual on International Environmental Law. UNEP. 5
social and economic aspects. The
integration of environmental, social
and economic policies also requires
transparency and broad public
participation in governmental decision-
making, as discussed in part c below.
2. Inter-Generational and Intra-Generational
Equity
20. Equity is central to the attainment of
sustainable development. This is
evident from many international
instruments. For example, the 1992
United Nations Framework
Convention on Climate Change
(UNFCC) refers in article 3.(1) to
intergenerational equity, as do the last
preambular paragraph of the 1992
CBD, the 1992 United Nations
Economic Commission for Europe
Convention on the Protection and Use
of Transboundary Watercourses and
International Lakes, the 1994
Desertification Convention and the
2001 Stockholm Convention on
Persistent Organic Pollutants
(POPs), among others. As noted
above, the Brundtland Commissions
Report defined sustainable
development as development that
meets the needs of the present without
compromising the ability of future
generations to meet their own needs;
and it goes on to identify two key
concepts of sustainable development.
The first of which is the concept of
needs, in particular the essential needs
of the worlds poor, to which
overriding priority should be given.
Similarly, Principle 3 of the 1992 Rio
Declaration states that The right to
development must be fulfilled so as to
equitably meet developmental and
environmental needs of present and
future generations; and Rio Principle 5
provides that All States and all people
shall cooperate in the essential task of
eradicating poverty as an indispensable
requirement for sustainable
development, in order to decrease the
disparities in standards of living and
better meet the needs of the majority of
the people of the world. Paragraph 6
of the Copenhagen Declaration, the
first sentence of which is reproduced
above, refers in subsequent sentences
to Equitable social development and
social justice. The concept of equity is
also embodied in the United Nations
Millennium Goals (e.g. the Eradication
of Poverty)
and
Millennium
Declaration
(e.g.
paragraphs 6,
11 and 21).

21. Equity thus
includes both
inter-
generational
equity (i.e.
the right of
future
generations to
enjoy a fair
level of the common patrimony) and
intra- generational equity (i.e. the
right of all people within the current
generation to fair access to the current
generations entitlement to the Earths
natural resources).

22. The present generation has a right to
use and enjoy the resources of the
Earth but is under an obligation to take
into account the long-term impact of
its activities and to sustain the resource
base and the global environment for
the benefit of future generations of
humankind. In this context, benefit is
given its broadest meaning as
including, inter
alia, economic,
environmental
, social, and
intrinsic gain.

23. Some national
courts have
referred to the
right of future
generations in
cases before
them. For
example, the
Supreme
Court of the Republic of the Philippines
decided, in the Minors Oposa case
(Philippines - Oposa et. al. v. Fulgencio
S. Factoran, Jr. et al. G.R. No. 101083),
that the petitioners could file a class
suit, for others of their generation and
for the succeeding generations. The
Court, considering the concept of inter-
1972 Stockholm Declaration
Principle 21
States have, in accordance with the Charter
of the United Nations and the principles of
international law, the sovereign right to
exploit their own resources pursuant to their
own environmental policies, and the
responsibility to ensure that activities within
their jurisdiction or control do not cause
damage to the environment of other States
or of areas beyond the limits of national
jurisdiction.

1992 Rio Declaration Principle 2
States have, in accordance with the Charter
of the United Nations and the principles of
international law, the sovereign right to
exploit their own resources pursuant to their
own environmental and developmental
policies, and the responsibility to ensure that
activities within their jurisdiction or control
do not cause damage to the environment of
other States or of areas beyond the limits of
national jurisdiction.

Training Manual on International Environmental Law. UNEP. 6
generational responsibility, further
stated that every generation has a
responsibility to the next to preserve
that rhythm and harmony necessary for
the full enjoyment of a balanced and
healthful ecology.
3. Responsibility for Transboundary Harm
24. Principle 21 of the Stockholm
Declaration recognizes the sovereign
right of each state upon its natural
resources, emphasizing that it is limited
by the responsibility for transboundary
harm.

Twenty years later, Principle 21 was reiterated
in Principle 2 of the Rio Declaration, with the
sole change of adding the adjective
developmental between the words
environmental and policies:

25. Stockholm Principle 21/ Rio Principle
2, although part of non-binding texts,
are nonetheless well- established, and
are regarded by some as a rule of
customary international law. Either or
both of them have been reaffirmed in
declarations adopted by the United
Nations, including the Charter of
Economic Rights and Duties of States,
the World Charter for Nature, and the
Declaration of the 2002 World Summit
on Sustainable Development. Their
contents are included in the United
Nations Convention on the Law of the
Sea (UNCLOS) as well as in article 20
of the Association of South East Asian
Nations (ASEAN) Agreement on the
Conservation of Nature and Natural
Resources. The 1979 Convention on
Long- Range Transboundary Air
Pollution reproduces Principle 21
stating that it "expresses the common
conviction that States have" on this
matter. Principle 21 also appears in
article 3 of the 1992 Convention on
Biological Diversity, to which virtually
all the states of the world are parties,
and, as restated in the 1992 Rio
Declaration, in the preamble of the
1992 UNFCCC, the 1999 Protocol on
Water and Health to the Convention
on the Protection and Use of
Transboundary Watercourses and
International Lakes, and the 2001
Stockholm Convention on Persistent
Organic Pollutants (POPs). Also, the
International Court of Justice (ICJ)
recognized in an advisory opinion that
The existence of the general
obligation of states to ensure that
activities within their jurisdiction and
control respect the environment of
other states or of areas beyond national
control is now part of the corpus of
international law relating to the
environment. (See Legality of the
Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Reports, pp.
241-42, 1996).
26. Stockholm Principle21/ Rio Principle 2
contain two elements which cannot be
separated without fundamentally
changing their sense and effect: (1) the
sovereign right of states to exploit
their own natural resources, and (2) the
responsibility, or obligation, not to
cause damage to the environment of
other states or areas beyond the limits
of national jurisdiction. It is a well-
established practice that, within the
limits stipulated by international law,
every state has the right to manage and
utilize natural resources within its
jurisdiction and to formulate and
pursue its own environmental and
developmental policies. However, one
of the limits imposed by international
law on that right is that states have an
obligation to protect their environment
and prevent damage to neighbouring
environments.

27. Stockholm Principle 21/Rio Principle 2
affirm the duty of states to ensure that
activities within their jurisdiction or
control do not cause damage to the
environment of other states. This
means that states are responsible not
only for their own activities, but also
with respect to all public and private
activities within their jurisdiction or
control that could harm the
environment of other states or areas
outside the limits of their jurisdiction.
The responsibility for damage to the
environment exists not only with
respect to the environment of other
states, but also of areas beyond the
limits of national jurisdiction, such as
the high seas and the airspace above
them, the deep seabed, outer space, the
Training Manual on International Environmental Law. UNEP. 7
Moon and other celestial bodies, and
Antarctica.

28. The exact scope and implications of
Stockholm Principle 21/Rio Principle 2
are not clearly determined. It seems
clear that not all instances of
transboundary damage resulting from
activities within a state's territory or
control can be prevented or are
unlawful, though compensation may
nevertheless be called for; but the
circumstances in which those outcomes
arise are not entirely clear.
4. Transparency, Public Participation and
Access to Information and Remedies
29. Public participation and acces to
information are recognized in Principle
10 of the Rio Declaration.

30. Transparency and access to
information are essential to public
participation and sustainable
development, for example, in order to
allow the public to know what the
decision making processes are, what
decisions are being contemplated, the
alleged factual bases for proposed and
accomplished governmental actions,
and other aspects of governmental
processes. Public participation is
essential to sustainable development
and good governance in that it is a
condition for responsive, transparent
and accountable governments. It is also
a condition for the active engagement
of equally responsive, transparent and
accountable Civil Society
organizations, including industrial
concerns, trade unions, and Non
Governmental Organizations
(NGOs). Public participation in the
context of sustainable development
requires effective protection of the
human right to hold and express
opinions and to seek, receive and
impart ideas. It also requires a right of
access to appropriate, comprehensible
and timely information held by
governments and industrial concerns
on economic and social policies
regarding the sustainable use of natural
resources and the protection of the
environment, without imposing undue
financial burdens upon the applicants
and with adequate protection of privacy
and business confidentiality.

31. The empowerment of people in the
context of sustainable development also
requires access to effective judicial and
administrative proceedings. For
example, states should ensure that
where transboundary harm has been or
is likely to be caused, affected
individuals and communities have non-
discriminatory access to effective
judicial and administrative processes.

32. Principle 10 combines public
participation with public access to
information and access to remedial
procedures. According to chapter 23 of
Agenda 21, one of the fundamental
prerequisites for the achievement of
sustainable development is broad public
participation in decision-making.
Agenda 21 (chapters 23-32, and 36)
emphasises the importance of the
participation of all Major Groups, and
special emphasis has been given in
Agenda 21, the Rio Declaration, and in
legally binding international
instruments to ensuring the
participation in decision-making of
those groups that are considered to be
politically disadvantaged, such as
indigenous peoples and women.
Principle 10 also supports a role for
individuals in enforcing national
1992 Rio Declaration
Principle 10
Environmental issues are best handled with the
participation of all concerned citizens, at the
relevant level. At the national level, each
individual shall have appropriate access to
information concerning the environment that is
held by public authorities, including information
on hazardous materials and activities in their
communities, and the opportunity to participate
in decision-making processes. States shall
facilitate and encourage public awareness and
participation by making information widely
available. Effective access to judicial and
administrative proceedings, including redress and
remedy, shall be provided.
Training Manual on International Environmental Law. UNEP. 8
environmental laws and obligations
before national courts and tribunals.

33. The 1992 United Nations Framework
Convention on Climate Change, in
article 4.(1)(i), obliges Parties to
promote public awareness and
participation in the process, including
that of NGOs, though it does not create
a public right of access to information.
The 1994 Desertification Convention
recognizes, in article 3(a)(c), the need
to associate Civil Society with the
action of the State. (See also article 12
of the 1995 United Nations Fish Stocks
Agreement). The 1993 North American
Agreement on Environmental
Cooperation requires parties to publish
their environmental laws, regulations,
procedures and administrative rulings
(article 4), to ensure that interested
persons have access to judicial, quasi-
judicial or administrative proceedings
to force the government to enforce
environmental law (article 6), and to
ensure that their judicial, quasi-judicial
and administrative proceedings are fair,
open and equitable (article 7). More
commonly, international legal
instruments addressing access to
information and public participation are
confined to distinct contexts, such as
Environmental Impact Assessment.
For example, the 1992 CBD requires
appropriate public participation in EIA
procedures in article 14.(1)(a); article
13 addresses the need for public
education and awareness.

34. These concepts mean that international
institutions, such as international
financial institutions, should also
implement open and transparent
decision- making procedures that are
fully available to public participation.
Examples of this include the World
Bank Inspection Panel, which provides
groups affected by World Bank
projects the opportunity to request an
independent inspection into alleged
violations of Bank policies and
procedures. The petitioning process
included in articles 14 and 15 of the
1993 North American Agreement on
Environmental Cooperation also
provides significant new rights for
citizens to participate in monitoring
domestic enforcement of environmental
laws. These concepts also imply that
NGOs should be provided at least
observer status in international
institutions and with respect to
treaties, and should be appropriately
relied upon for expertise, information
and other purposes.

35. In many countries, public participation
rights are granted through
Environmental Impact Assessment
procedures with broad public
participation or in various sectoral laws
adapted to the special circumstances of
each sector. Consultation with, and
dissemination of information to the
public are important objectives of EIAs.
For example, article 16(3) of the 1986
Convention for the Protection of the
Natural Resources and Environment of
the South Pacific Region requires that
the information gathered in the
assessment be shared with the public
and affected parties. In Africa, the
Memorandum of Understanding
(MOU) of October 22, 1998, between
Kenya, Tanzania and Uganda contains
the agreement of the three states to
develop technical guides and
regulations on EIA procedures,
including enabling public participation
at all stages of the process and to enact
corresponding legislation (article 14).
This provision was subsequently
embodied in the Treaty for East
African Community by the three states
Kenya, Tanzania and Uganda. As noted
above, the 1992 CBD also requires
appropriate public participation in
environmental assessment in article
14(1)(a); and it includes a notification
and consultation requirement in article
14(1)(c).

5. Cooperation, and Common but
Differentiated Responsibilities

36. Principle 7 of the Rio Declaration
provides:
Training Manual on International Environmental Law. UNEP. 9

37. Principle 7 can be divided into two
parts: (1) the duty to cooperate in a
spirit of global partnership; and (2)
common but differentiated
responsibilities.

38. The duty to cooperate is well-
established in international law, as
exemplified in articles 55 and 56 of
chapter IX of the Charter of the United
Nations, to which all UN member
states, at present 191, subscribe, and
applies on the global, regional and
bilateral levels. The goal of the Rio
Declaration is, according to the fourth
paragraph of its preamble, the
establishment of a ...new and equitable
global partnership... The concept of
global partnership can be seen as a
more recent reformulation of the
obligation to cooperate, and is
becoming increasingly important.
Principle 7 refers to states, but the
concept of global partnership may also
be extended to non-state entities.
International organisations, business
entities (including in particular
transnational business entities), NGOs
and Civil Society more generally
should cooperate in and contribute to
this global partnership. Polluters,
regardless of their legal form, may also
have also responsibilities pursuant to
the PolluterPays Principle,
described in paragraph 62 and further.

39. Principle 7 also speaks of common but
differentiated responsibilities. This
element is a way to take account of
differing circumstances, particularly in
each state's contribution to the creation
of environmental problems and in its
ability to prevent, reduce and control
them. States whose societies have in
the past imposed, or currently impose,
a disproportionate pressure on the
global environment and which
command relatively high levels of
technological and financial resources
bear a proportionally higher degree of
responsibility in the international
pursuit of sustainable development.

40. In practical terms, the concept of
common but differentiated
responsibilities is translated into the
explicit recognition that different
standards, delayed compliance
timetables or less stringent
commitments may be appropriate for
different countries, to encourage
universal participation and equity. This
may result in differential legal norms,
such as in the 1987 Montreal Protocol
on Substances that deplete the Ozone
Layer (See chapter 9 of this Training
Manual). In designing specific
differentiated regimes, the special needs
and interests of developing countries
and of countries with economies in
transition, with particular regard to
least developed countries and those
affected adversely by environmental,
social and developmental
considerations, should be recognized.

41. According to the concept of common
but differentiated responsibilities,
developed countries bear a special
burden of responsibility in reducing
and eliminating unsustainable patterns
of production and consumption and in
contributing to capacity-building in
developing countries, inter alia by
providing financial assistance and
access to environmentally sound
technology. In particular, developed
countries should play a leading role and
assume primary responsibility in
matters of relevance to sustainable
1992 Rio Declaration
Principle 7
States shall cooperate in a spirit of global
partnership to conserve, protect and restore
the health and integrity of the Earths
ecosystem. In view of the different
contributions to global environmental
degradation, States have common but
differentiated responsibilities. The developed
countries acknowledge the responsibility
that they bear in the international pursuit of
sustainable development in view of the
pressures their societies place on the global
environment and of the technologies and
financial resources they command.
Training Manual on International Environmental Law. UNEP. 10
development. A number of
international agreements recognize a
duty on the part of industrialized
countries to contribute to the efforts of
developing countries to pursue
sustainable development and to assist
developing countries in protecting the
global environment. Such assistance
may entail, apart from consultation and
negotiation, financial aid, transfer of
environmentally sound technology and
cooperation through international
organizations.

42. Article 4 of the 1992 Cimate Change
Convention recognizes the special
circumstances and needs of developing
countries and then structures the duties
and obligations to be undertaken by
states accordingly. The idea of common
but differentiated responsibilities and
respective capabilities is stated in
article 3 as the first principle to guide
the parties in the implementation of the
Convention. Article 12 allows for
differences in reporting requirements.
The provisions of the Convention on
joint implementation (article 4.(2)(a),
(b)) and guidance provided on the issue
by its Conference of the Parties are also
of relevance. The 1992 Convention on
Biological Diversity states in article 20
(4) that implementation of obligations
undertaken by developing countries
will depend on the commitments of
developed countries to provide new and
additional financial resources and to
provide access to and transfer of
technology on fair and most favourable
terms. Other parts of this Convention
relate to the special interests and
circumstances of developing countries
(e.g., paragraphs 13-17, 19 and 21 of
the Preamble and articles 16-21).

43. The 1994 Desertification Convention
contains specific obligations for affected
country parties (article 5) and
recognizes additional responsibilities
for developed country Parties (article
6). Article 26 of the 1996 Protocol to
the Convention on the Prevention of
Marine Pollution by Dumping of
Wastes and other Matter of 1972
creates the opportunity for parties to
adhere to an adjusted compliance time
schedule for specific provisions. The
idea of common but differentiated
responsibilities can be seen as the main
idea behind the Fourth APC-EEC
Convention of Lome and is included in
the fourth preambular paragraph of the
2001 Stockholm Convention on
Persistent Organic Pollutants.
6. Precaution
44. Precaution (also referred to as the
precautionary principle, the
precautionary approach, and the
principle of the precautionary
approach) is essential to protecting the
environment (including human health)
and is accordingly one of the most
commonly encountered concepts of
international environmental law. It is
also one of the most controversial,
however, because of disagreements
over its precise meaning and legal
status and because of concern that it
may be misused for trade-protectionist
purposes.

45. Probably the most widely accepted
articulation of precaution is Principle
15 of the Rio Declaration.

46. Principle 15 was one of the first global
codifications of the precautionary
approach. Other formulations also
adopted in 1992 at UNCED appear in
the ninth preambular paragraph of the
1992 Convention on Biological
Diversity and in article 3(3) of the 1992
Climate Change Convention. The 1992
CBD states: ..where there is a threat of
significant reduction or loss of
biological diversity, lack of full
scientific uncertainty should not be
1992 Rio Declaration
Principle 15
In order to protect the environment, the
precautionary approach shall be widely
applied by States according to their
capabilities. Where there are threats of
serious or irreversible damage, lack of full
scientific certainty shall not be used as a
reason for postponing cost-effective
measures to prevent environmental
degradation.
Training Manual on International Environmental Law. UNEP. 11
used as a reason for postponing
measures to avoid or minimize such a
threat. This language is less
restrictive than Principle 15, because
significant is a lower threshold than
serious or irreversible and the
language does not limit permissible
action to cost-effective measures.
Article 3(3) of the 1992 Climate
Change Convention appears to take a
somewhat more action-oriented
approach than Principle 15, stating:
The parties should take precautionary
measures to anticipate, prevent or
minimize the cause of climate change
and mitigate its adverse effects... The
next sentence, however, repeats
Principle 15 almost verbatim.

47. Other formulations also exist. One of
the most forceful is that in article
4(3)(f) of the 1991 Bamako Convention
on the Ban of the Import into Africa
and the Control of their
Transboundary Movement and
Management of Hazardous Wastes
within Africa, which requires parties to
take action if there is scientific
uncertainty. Another example can be
found in the 1996 Protocol to the
London Convention, which states in
article 3(1): "In implementing this
Protocol, Contracting parties shall
apply a precautionary approach to
environmental protection ... when there
is reason to believe that wastes or other
matter introduced in the marine
environment are likely to cause harm
even when there is no conclusive
evidence to prove a causal relation
between inputs and their effects". Its
second preambular paragraph,
emphasizes the achievements, within
the framework of the London
Convention, especially the evolution
towards approaches based on
precaution and prevention.
48. The 2000 Cartagena Biosafety Protocol
to the 1992 CBD is based upon the
precautionary approach. It is contained
in article 1 on the objective of the
Protocol which refers explicitly to Rio
Principle 15. Articles 10 and 11 contain
the key provisions regarding
precaution. Article 10(6) provides that
lack of scientific certainty due to
insufficient relevant information and
knowledge regarding the extent of the
potential adverse effects of Living
Modified Organisms (LMO) shall not
prevent the Party from taking a
decision, as appropriate with regard to
the import of the LMO in question..., in
order to avoid or minimize such
potential adverse effects. Article 11
uses similar language. Thus, a country
may reject an import even in the
absence of scientific certainty that it
will potentially cause harm. These
provisions are broader than Rio
Principle 15 because they do not refer
to serious or irreversible damage or
cost-effectiveness.
49. The 1995 Agreement on Fish Stocks
adopts the precautionary approach in
article 6; and its article 5(c) states that
the application of the precautionary
approach is one of the general
principles of the Agreement. (See also
Annex II to the Agreement,
Guidelines for Application of
Precautionary Reference Points in
Conservation and Management of
Straddling Fish Stocks and Highly
Migratory Fish Stocks). The
precautionary approach is also included
in Annex II, article 3(3)(c), of the
Convention for the Protection of the
Marine Environment of the North-East
Atlantic.
50. Other international agreements in
which the precautionary approach
appears include: Helsinki Convention
on the Protection of the Marine
Environment of the Baltic Sea, Area
article 3(2)(1992); Amendments to the
Protocol for the Protection of the
Mediterranean Sea against Pollution
from Land-Based Sources, Preamble
(1996); Protocol to the 1979
Convention on Long- Range
Transboundary Air Pollution to abate
Acidification, Eutrophication and
Ground-Level Ozone, Preamble (1999);
the Cartagena Protocol on Biosafety,
Preamble (2000); Convention on the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean,
Preamble (2000); Convention on the
Conservation and Management of
Fishery Resources in the South-East
Atlantic Ocean, Preamble (2001); the
Training Manual on International Environmental Law. UNEP. 12
Stockholm Convention on Persistent
Organic Pollutants, Preamble (2001);
the European Energy Charter Treaty,
article 19(1) (1994); Agreement on the
Conservation of Albatrosses and
Petrels, article II(3) (2001); the
Convention for Cooperation in the
Protection and Sustainable
Development of the Marine and
Coastal Environment of the Northeast
Pacific, article 5 (6)(a) (2002); and the
ASEAN Agreement on Transboundary
Haze Pollution, article 3.(3) (2002).
51. Concrete application of the
precautionary approach can be found in
treaties for the management of living
resources, especially those concerning
fishing. The 1995 United Nations
Agreement for the Implementation of
the Provisions of the United Nations
Convention on the Law of the Sea of 10
December 1982, relating to the
Conservation and Management of
Straddling Fish Stocks and Highly
Migratory Fish Stocks declares that
states shall apply the precautionary
approach (article 5(c)). Article 6 adds
that such application includes taking a
precautionary approach widely to
conservation, management and
exploitation of straddling fish stocks
and highly migratory fish stocks, inter
alia, by improving decision-making in
this field, by taking into account
uncertainties relating to the size and
productivity of the stocks, by
developing knowledge, by not
exceeding reference points, by
enhanced monitoring and by adopting,
if necessary, emergency measures.
Similarly, the 2000 Convention on the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean
provides that the Commission created
by this instrument shall apply the
precautionary approach (article 5(c)).
EC Regulation 2371/2002 of
December 2002 on the Conservation
and Sustainable Exploitation of
Fisheries Resources under the
Common Fisheries Policy also foresees
that the Community ...shall apply the
precautionary approach in taking
measures designed to protect and
conserve living aquatic resources, to
provide for their sustainable
exploitation and to minimize the
impact of fishing activities on marine
ecosystems... (article 2(1)).
52. The precautionary principle has been
invoked before the International Court
of Justice. Judge Weeramantry in his
opinion dissenting from the Order of
the Court of 22 September 1995
concluded that the precautionary
principle was gaining increasing
support as part of the international law
of the environment. Judge
Weeramantry stated:
The law cannot function in protection of
the environment unless a legal principle is
involved to
meet this evidentiary difficulty, and
environmental
law has responded with what has come to
be described as the precautionary principle
a principle
which is gaining increasing support as part
of the international law of the
environment.
ICJ Order of 22 September 1995, at p.
342 (eeramantry, J., dissenting). In
the Gabcikovo Case, the International
Court of Justice did not accept
Hungarys argument that a state of
necessity could arise from application of
the precautionary principle.
53. The European Court of Justice (ECJ)
has adopted the precautionary
approach, particularly in respect to
environmental risks that pose dangers
to human health. The Court held that
the Commission had not committed
manifest error when banning the
export of beef during the mad cow
crisis. The Court said: At the time
when the contested decision was
adopted, there was great uncertainty as
to the risks posed by live animals,
bovine meat and derived products.
Where there is uncertainty as to the
existence or extent of risks to human
health, the institutions may take
protective measures without having to
await the reality and seriousness of
those risks to become fully apparent.
Judgement of the ECJ in Cases C-
157/96 (The Queen vs Ministry of
Agriculture, Fisheries and Food) and
C-180/96 (UK vs Commission of the
EC).
Training Manual on International Environmental Law. UNEP. 13
54. In the Southern Bluefin Tuna Case, the
International Tribunal on the Law of
the Sea (ITLOS) could not
conclusively assess the scientific
evidence regarding the provisional
measures sought by New Zealand and
indeed, the country requested the
measures on the basis of the
precautionary principle, pending a final
settlement of the case. ITLOS found
that in the face of scientific uncertainty
regarding the measures, action should
be taken as a measure of urgency to
avert further deterioration of the tuna
stock. In its decision- making, the
tribunal said that in its view, the
Parties should in the circumstances act
with prudence and caution to ensure
that effective conservation measures
are taken to prevent serious harm to
the stock of southern bluefin tuna. See
ITLOS, Southern Bluefin Tuna Case
(Australia and New Zealand v. Japan),
Order of August 27, 1999. The decision
prescribed a limitation to experimental
fishing to avoid possible damage to the
stock.
55. Central to all of the preceding
formulations is the element of
anticipation, reflecting the need for
effective environmental measures to be
based upon actions which take a long-
term approach and which anticipate
possible revisions on the basis of
changes in scientific knowledge. Also
central to precaution is the reality that
environmental decision makers seldom,
if ever, have all the information they
would like to have before making a
decision.
56. The exercise of precaution with respect
to risk management can take many
forms, including most commonly
taking pollution-prevention actions or
placing the burden of proof safety on
the person or persons carrying out or
intending to carry out an activity that
may cause harm, including using or
importing a drug or other potentially
dangerous substance. Another
precautionary method is to provide
additional margins of safety, beyond
those that are directly verifiable by
existing scientific information, for
vulnerable groups such as children.
7. Prevention
47. Experience and scientific expertise
demonstrate that prevention of
environmental harm should be the
Golden Rule for the environment, for
both ecological and economic reasons.
It is frequently impossible to remedy
environmental injury: the extinction of
a species of fauna or flora, erosion, loss
of human life and the dumping of
persistent pollutants into the sea, for
example, create irreversible situations.
Even when harm is remediable, the
costs of rehabilitation are often
prohibitive. An obligation of
prevention also emerges from the
international responsibility not to cause
significant damage to the environment
extra- territorially, but the preventive
approach seeks to avoid harm
irrespective of whether or not there is
transboundary impact or international
responsibility.
58. The concept of prevention is complex,
owing to the number and diversity of
the legal instruments in which it
occurs. It can perhaps better be
considered an overarching aim that
gives rise to a multitude of legal
mechanisms, including prior
assessment of environmental harm,
licensing or authorization that set out
the conditions for operation and the
consequences for violation of the
conditions, as well as the adoption of
strategies and policies. Emission limits
and other product or process standards,
the use of best available techniques and
similar techniques can all be seen as
applications of the concept of
prevention.
59. One obligation that flows from the
concept of prevention is prior
assessment of potentially harmful
activities. Since the failure to exercise
due diligence to prevent transboundary
harm can lead to international
responsibility, it may be considered
that a properly conducted
Environmental Impact Assessment
might serve as a standard for
determining whether or not due
diligence was exercised. Preventive
mechanisms also include monitoring,
notification, and exchange of
information, all of which are
obligations in almost all recent
environmental agreements. ITLOS, in
Training Manual on International Environmental Law. UNEP. 14
its Order of 3 December 2001 in the
MOX Plant Case, considered (para. 82)
the duty to cooperate in exchanging
information concerning environmental
risks a fundamental principle in the
prevention of pollution of the marine
environment under the United
Nations Convention on the Law of the
Sea and general international law.
Obligations to conduct EIAs are also
found in the 1991 Espoo Convention
on Environmental Impact Assessment
in a Transboundary Context, the 1992
Convention on the Transboundary
Effects of Industrial Accidents, and the
1993 North American Agreement on
Environmental Cooperation. Principle
17 of the 1992 Rio Declaration, Agenda
21, principle 8(h) of the 1992 Non-
Legally Binding Authorative Statement
of Principles for a Global Consensus on
the Management, Conservation and
Sustainable Development of all Types
of Forests (Forests Principles, and
article 14(1)(a) and (b) of the 1992 CBD
treat both the national and
international aspects of the issue. The
concept is also contained in article 206
of UNCLOS.
60. The duty of prevention extends to
combating the introduction of
exogenous species into an ecosystem.
Article V(4) of the 1976 Convention on
Conservation of Nature in the South
Pacific provides that the contracting
parties must carefully examine the
consequences of such introduction.
More stringently, article 22 of the 1997
United Nations Convention on the Law
of the Non- Navigational Uses of
International Watercourses requires
watercourse states to ...take all
measures necessary to prevent the
introduction of species, alien or new,
into an international watercourse
which may have effects detrimental to
the ecosystem of the watercourse
resulting in significant harm to other
watercourse States.
61. In fact, the objective of most
international environmental
instruments is to prevent
environmental harm, whether they
concern pollution of the sea, inland
waters, the atmosphere, soil or the
protection of human life or living
resources. Only a relatively few
international agreements use other
approaches, such as the traditional
principle of state responsibility or
direct compensation of the victims.
8. Polluter Pays Principle
62. Principle 16 of the Rio Declaration
provides:


63. Principle 16 on internalisation of costs
includes what has become known as the
Polluter Pays Principle or PPP.
According to the PPP, the
environmental costs of economic
activities, including the cost of
preventing potential harm, should be
internalized rather than imposed upon
society at large. An early version of the
PPP was developed by the
Organization for Economic Co-
operation and Development (OECD)
in the 1970s in an effort to ensure that
companies would pay the full costs of
complying with pollution- control laws
and were not subsidised by the state.
The PPP was adopted by the OECD as
an economic principle and as the most
efficient way of allocating costs of
pollution-prevention-and- control
measures introduced by public
authorities in the member countries. It
was intended to encourage rational use
of scarce resources and to avoid
distortions in international trade and
investment. It was meant to apply
within a state, not between states. As a
goal of domestic policy, it has been
realized only partially in practice. See
also chapter 5 of this Manual.
1992 Rio Declaration
Principle 16
National authorities should endeavour to
promote the internalization of environmental
costs and the use of economic instruments, taking
into account the approach that the polluter
should, in principle, bear the cost of pollution,
with due regard to the public interest and without
distorting international trade and investment.
Training Manual on International Environmental Law. UNEP. 15
64. Since 1972, the PPP has gained
increasing acceptance, has expanded in
its scope to include (at least in theory)
all costs associated with pollution, and
has moved beyond the developed-
country context. Some recent
international instruments that include
it are: the 2003 Protocol on Civil
Liability and Compensation for
Damage caused by the Transboundary
Effects of Industrial Accidents on
Transboundary Waters to the 1992
Convention on the Protection and Use
of Transboundary Watercourses and
International Lakes and to the 1992
Convention on the Transboundary
Effects of Industrial Accidents,
Preamble, paragraphs two and three;
and the 1996 Protocol to the London
Convention, article 3.2. of which states
that the polluter should, in principle,
bear the cost of pollution.
65. Prior to UNCED, the polluter pays
requirement was included in different
European Community (EC)
documents such as the 1986 Single
European Act, the 1992 Maastricht
Treaty and in the successive Programs
of Action on the Environment. An
important application of the principle is
found in article 9 of EC Directive
2000/60 on water, which requires
member states to take account of the
principle of recovery of the costs of
water services, including
environmental and resource costs.
Water pricing policies by 2010 are to
provide adequate incentives for the
efficient use of water resources. The
Treaty Establishing the European
Community, Title XIX, sets out the
principles meant to guide policy on the
environment, principles that shape
legislation in the EC. Article 174(2)
provides that EC environmental policy
...shall be based on the precautionary
principle and on the principles that
preventive action should be taken, that
environmental damage should as a
priority be rectified at source and that
the polluter should pay. In sum, the
polluter pays principle has to be taken
into account by all the EC institutions,
and the European Court of Justice
should ensure respect for the principle
in the cases it decides.
66. The 1990 International Convention on
Oil Pollution Preparedness, Response
and Cooperation states in its preamble
that the PPP is "a general principle of
international environmental law (para.
7). The 1992 Convention on the
Protection of the Marine Environment
of the Baltic Sea Area states in article
3(4) that the PPP is an obligatory
norm, while the 1992 Helsinki
Convention on the Protection and Use
of Transboundary Watercourses and
International Lakes includes it as a
guiding principle in article 2(5)(b).
More recent examples of reference to it
are found in the 1996 Amendments to
the 1980 Protocol for the Protection of
the Mediterranean Sea against
Pollution from Land-Based Sources
(Preamble para. 5), and the 2001
Stockholm Convention on Persistent
Organic Pollutants (Preamble, para.
17).
67. Issues relating to the content of the
polluter pays principle are evident in
the 1992 Convention for the Protection
of the Marine Environment of the
North-East Atlantic. According to
article 2(2)(b), The Contracting
Parties shall apply: ...the polluter pays
principle, by virtue of which the costs
of pollution prevention, control and
reduction measures are to be borne by
the polluter. This can be interpreted in
different ways depending upon the
extent of prevention and control and
whether compensation for damage is
included in the definition of
reduction. Further, the very concept
of the polluter can vary, from the
producer of merchandise to the
consumer who uses it and who pays the
higher price resulting from anti-
pollution production measures.
68. In fact, pollution costs can be borne
either by the community, by those who
pollute, or by consumers. Community
assumption of the costs can be
demonstrated using the example of an
unregulated industry that discharges
pollutants into a river. There are at
least three possibilities:
(1) the river can remain polluted and
rendered unsuitable for certain downstream
activities, causing the downstream
community to suffer an economic loss;
Training Manual on International Environmental Law. UNEP. 16
(2) the downstream community can build
an adequate water treatment plant at its
own cost;
(3) the polluter may receive public subsidies
for controlling the pollution.

In all these possibilities, the affected
community bears the cost of the
pollution and of the measures designed
to eliminate it or to mitigate its effects.
The PPP avoids this result by obliging
the polluter to bear the full costs of
pollution, to internalise them. In most
cases, presumably, the enterprise will in
fact incorporate the costs into the price
of its product(s) and thus pass the cost
on to the consumer; but it need not do
this for the PPP to have its intended
effect.
69. Without elaboration, it should be noted
that the PPP has also been increasingly
accepted and applied at national level
including in statutes in many countries
in the developing world, and in their
national supreme courts such as in
South Asia, Africa and elsewhere in the
world.

9. Access and Benefit Sharing regarding
Natural Resources
70. Many indigenous and other local
communities rely on natural resources
such as forests, high deserts, wetlands,
waterways, and fisheries for their
livelihood or even existence. In
addition, indigenous and other local
communities often have unique cultures
integrated with natural resources.
These communities typically relate to
these resources in a sustainable way, or
else their livelihoods would disappear
or their cultures would perish.
71. As a general matter, it is clear from Rio
Principle 10 (quoted in paragraph 29
above) and international human rights
norms that these communities and the
individuals comprising them have the
right to participate in decision-making
processes with respect to those
resources. They may also have
substantive rights to those resources,
the nature of which depends on both
international and domestic law. See,
e.g., Awas Tingni Mayagna (Sumo)
Indigenous Community vs the Republic
of Nicaragua, Inter-American Court of
Human Rights (2001). In addition to
international human rights law, an
international law example is the 1995
United Nations Agreement on Fish
Stocks, which in article 24(2)(b)
requires states to take into account
when establishing conservation and
management measures the need to
ensure access to fisheries by indigenous
people of developing states, particularly
Small Island Developing States. At the
domestic level, in addition to standard
legislation protecting property rights
for everyone, several nations
constitutions, legislation or customary
law recognizes property rights which
indigenous or other local communities
may exercise over their land and
waterways or which enable indigenous
or other local communities to take part
in decision-making processes.
72. A related issue is the extent to which
indigenous and other local
communities have the right to
participate in, or otherwise should be
involved in, the management,
development and preservation of the
resources on which they rely. Principle
22 of the Rio Declaration provides:




Principle 22 finds
its further
elaboration in
chapter 26 of
Agenda 21.
73. The 1993 Nuuk
Declaration on
Environment and
Development in
the Arctic States,
in Principle 7,
recognizes the
vital role of
indigenous peoples in managing natural
resources.

1992 Convention on Biological Diversity
Article 8(j)
Contracting Parties shall:
"subject to its national legislation, respect,
preserve and maintain knowledge, innovations
and practices of indigenous and local communities
embodying traditional lifestyles...and promote
their wider application with the approval and
involvement of the holders of such knowledge,
innovations and practices and encourage the
equitable sharing of the benefits arising from the
utilization of such knowledge, innovations and
practices".
Training Manual on International Environmental Law. UNEP. 17
74. With respect to biological diversity, the vital
role of indigenous and other local communities
is expressly recognized in preambular
paragraph 12 of the 1992 Convention on
Biological Diversity, and is further detailed in
its articles 8(j), 10(c), and 17.2. Article 8(j) states
that:







75. As a practical matter, the knowledge of
indigenous and other local communities, their
participation in decision-making and their
involvement in management is often crucial for
the protection of local ecosystems, for sound
natural resource management, and for the
broader effort to achieve sustainable
development taking into account their
traditional knowledge and cultural
environment. Their involvement in EIA
procedures is an example of their valuable
participation in decision-making for sustainable
development.

76. As a legal matter, the question has arisen
whether indigenous and local communities have,
in addition to the procedural and substantive
rights identified above, the right to Prior
Informed Consent (PIC) (sometimes referred
to as free, prior and informed consent or
FPIC) with respect to the use of their
knowledge and the genetic resources on which
they rely. In the words of article 8(j) (quoted
above), what does with their approval entail?
Some believe that there is an absolute right to
such prior informed consent; some believe that
such a right exists but that it is subject to the
proper exercise of eminent domain; and others
believe that no such right exists unless
embodied in domestic law. Similarly, questions
exist regarding the terms on which such
knowledge and genetic resources may be used
or, in the words of article 8(j), what is equitable
sharing? The analysis of these questions may
differ depending on whether the local
community is indigenous or not, to the extent
indigenous people have different or additional
rights under international or domestic law. For
example, the International Labour Organization
has adopted various conventions relating to
indigenous people, starting in 1936 with the,
now outdated, Recruiting of Indigenous
Workers Convention, to the 1989 Indigenous
and Tribal Peoples Convention; also the 1992
Forest Principles 2(d), 5(a) and 12(d) refer to the
recognition of traditional or indigenous rights.

77. At the time of this writing (2005), these
questions are being discussed in several
international fora, including the Conference of
the Parties to the 1992 Convention on
Biological Diversity, the World Intellectual
Property Organization, the World Trade
Organization Agreement on Trade-Related
Aspects of Intellectual Property Rights, the
World Bank, the International Finance
Corporation, and various regional development
banks and export credit agencies. Some
institutions already have processes in place that
are similar to prior informed consent.


10. Common Heritage and Common Concern
of Humankind

78. The concepts of common heritage of
humankind and common concern of
humankind reflect the growing awareness of
the interdependence of the biosphere and the
environmental problems besetting it, as well as
of the global nature of many environmental
problems and the critical importance of those
problems. It is thus increasingly acknowledged
1993 Nuuk Declaration on Environment and
Development in the Arctic States
Principle 7
e recognize the special role of indigenous
peoples in environmental management and
development in the Arctic, and of the
significance of their knowledge and traditional
practices, and will promote their effective
participation in the achievement of sustainable
development in the Arctic.
1992 Rio Declaration
Principle 22
Indigenous people and their communities and
other local communities have a vital role in
environmental management and development
because of their knowledge and traditional
practices. States should recognzse and duly
support their identity, culture and interests and
enable their effective participation in the
achievement of sustainable development.

Training Manual on International Environmental Law. UNEP. 18
that the international community has an interest
in these issues.

79. The protection, preservation and enhancement
of the natural environment, particularly the
proper management of the climate system,
biological diversity and fauna and flora of the
Earth, are generally recognized as the common
concern of humankind. Basic assumptions
implicit in the common concern concept include
that states and other actors should not cause
harm with regard to issues of common concern,
and that states and other actors share
responsibility for addressing common concerns.

80. The resources of outer space and celestial bodies
and of the sea-bed, ocean floor and subsoil
thereof beyond the limits of national jurisdiction
are generally recognized as the common
heritage of humankind. The international
communitys interest in these is probably
stronger, generally speaking, than it is with
respect to common concern, though the
contours of that interest are not clearly defined.

11. Good Governance

81. The concept of good governance is relatively
recent and reflects a growing awareness of the
importance to sustainable development of
transparent, accountable, honest governance, as
well as a growing awareness of the corrosive
effect of corruption on public morale, economic
efficiency, political stability and sustainable
development in general. The concept implies,
among others, that states and international
organizations should: (a) adopt democratic and
transparent decision-making procedures and
financial accountability; (b) take effective
measures to combat official or other corruption;
(c) respect due process in their procedures and
observe the rule of law more generally; (d)
protect human rights; and (e) conduct public
procurement in a transparent, non-corrupt
manner.

82. Good governance implies not only that Civil
Society has a right to good governance by states
and international organizations, but also that
non- state actors, including business enterprises
and NGOs, should be subject to internal
democratic governance and effective
accountability. In addition, good governance
calls for corporate social responsibility and
socially responsible investments as conditions
for the existence of a sustainable global market
that will achieve an equitable distribution of
wealth among and within communities.

83. Good governance requires full respect for the
principles of the 1992 Rio Declaration on
Environment and Development, including the
full participation of women in all levels of
decision- making. Achieving good governance is
essential to the progressive development,
codification and implementation of international
and domestic law relating to sustainable
development. Also, Goal 8 of the Millennium
Development Goals on developing a global
partnership for development, has as one of its
targets (target 12) to Develop further an open,
rule-based, predictable, non- discriminatory
trading and financial system. Includes a
commitment to good governance, development,
and poverty reduction - both nationally and
internationally.
Dr. Daniel B. Magraw Jr., President, Center for
International Environmental Law (CIEL)
Barbara Ruis, Legal Officer, Division of Policy
Development and Law, UNEP

Resources
Text Materials

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