Law Training Manual

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

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 are based, or rules of conduct) and concepts others (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 both reflect the past growth of international they 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 to principles or concepts and are engines in refer the evolving environmental law.

OF 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 apiecemeal 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 the principles in the 1972 health), Stockholm and 1992 Rio Declaration are widelyDeclaration 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

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PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW 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 nonbinding international instruments. Such texts are often to negotiate and amend in the light of new easier problems where scientific knowledge and public awareness can be the major factors pressing for international action. Principles in non-binding texts help develop international environmental can 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 it is difficult to establish the precise cases 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”.

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Chapter 3 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 fillgaps in existing law. It could also facilitate in 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 lawmaking. 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 regardless of its designation as “environmental” and may affect the evolution of international environmental law principles more generally. At same time, the development of international the environmental law principles and concepts may the development of principles in other areas affect of international law. The application and, where consolidation and further development of relevant, the principles and concepts of international law listed in this chapter, as well as environmental of other principles of international law, will be instrumental in pursuing the objective of sustainable development. III. Emerging Concepts

Principles

and

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

Chapter 3 7. Prevention 8. “Polluter Pays Principle” 9. Access and Benefit Sharing regarding Natural Resources 10. Common Heritage and Common Concern of Humankin d Governance 11. Good

1. Sustainable Development, Integration and Interdependenc e 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 Report, Our Common Future, that 1987 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

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

OF LAW 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.” Integration was one of the main themes discussed at the 2002 Johannesburg World Summit on Sustainable Development, with particular on eradicating poverty. One of the emphasis 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 speaks of the need for greater policy Declaration 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 Commission’s 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 various elements of the biosphere, the 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

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PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW 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 and decision-making and a tool to processes 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 social and economic aspects. The integration of environmental, social and economic policies also requires transparency and broad public participation in governmental decisionmaking, 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

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Chapter 3 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 Commission’s 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 world’s 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 (e.g. paragraphs 6, 11 and 21). Declaration 21. Equity thus includes both “intergenerational equity” (i.e. the right of future generations to enjoy a fair level of the common patrimony) and “intragenerational equity” (i.e. the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s 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,

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

Chapter 3 considering the concept of inter-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 tranboundary harm. 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.”

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”: 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 withinjurisdiction or control do not cause damage their to the environment of other States or of areas beyond the limits of national jurisdiction.”

25. Stockholm Principle 21/ Rio Principle 2, although part of non-binding texts, are nonetheless wellestablished, and are regarded by some as a rule of customary international law. Either or both of them been reaffirmed in declarations adopted by have 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 as in article 20 of the Association of South East well Asian Nations (“ASEAN”) Agreement on the Conservation of Nature and Natural Resources. The 1979 Convention on LongRange Transboundary Air Pollution reproduces Principle

OF LAW 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 Principle 21/Rio Principle 2 contain two elements which cannot be separated without fundamentally changing their sense and effect: (1) sovereign right of states to exploit their own the 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 have an obligation to protect their states 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 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

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PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW 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. 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.”

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 are, what decisions are being processes 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 and to seek, receive and impart ideas. It opinions 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 of privacy and business confidentiality. protection 31. The empowerment of people in the context of sustainable development also requires access to 28

Chapter 3 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 decisionmaking. 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 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, quasijudicial 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-procedures that are fully available to public making participation. Examples of this include the World Bank Inspection Panel, which provides groups affected by World Bank projects the opportunity to

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

Chapter 3 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 with broad public participation or procedures 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 Differentiated Responsibilitie s 36. Principle 7 of the Rio Declaration provides:

OF LAW 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 “Polluter–Pays 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 high levels of technological and financial relatively resources bear a proportionally higher degree of responsibility in the international pursuit of sustainable development.

but

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 Earth’s 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 of the pressures their societies place on the view global environment and of the technologies and financial resources they command.”

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.

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PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW 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 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

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Chapter 3 responsibilities can be seen as the main idea behind the Fourth APC-EEC Convention of Lome is included in the fourth preambular and 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. 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.”

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 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.

Chapter 3 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 when there is no conclusive evidence to even 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, for Application of Precautionary “Guidelines 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.

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

OF LAW 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 LongRange 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 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

31

PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW 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 of the Court of 22 September 1995 Order 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 (Weeramantry, J., dissenting). In the Gabçikovo Case, the International Court of Justice did not accept Hungary’s 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 The Court held that the Commission health. had committed manifest error when banning not the export of beef during the “mad cow” crisis. The Court said: “At the time when the contestedwas adopted, there was great uncertainty decision 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). 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

32

Chapter 3 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 decisionmaking, the tribunal said that in its view, “the should in the circumstances act with Parties prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin See tuna.” , Southern Bluefin Tuna Case (Australia and ITLOS 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 amaking 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 57. Experience and scientific expertise demonstrate that prevention of environmental harm should be “Golden Rule” for the environment, for the 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-

Chapter 3 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 astandard 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 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 general international law. Obligations to and 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

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

OF LAW 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 NonNavigational 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 of the sea, inland waters, the atmosphere, pollution 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: 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 in principle, bear the cost of pollution, should, with due regard to the public interest and without distorting international trade and investment.”

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 at large. An early version of the PPP was society developed by the Organization for Economic Cooperation and Development (“OECD”) in the in an effort to ensure that companies would 1970s pay the full costs of complying with pollutioncontrol 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-andcontrol 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. 33

PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW 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 developedcountry 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 EC. Article 174(2) provides that EC the 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 European Court of Justice should ensure the 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

34

Chapter 3 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 interpreted in different ways depending be upon extent of prevention and control and the 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 antipollution 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 costsbe demonstrated using the example of can 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; (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 to eliminate it or to mitigate its effects. designed 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 its intended effect. have 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.

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

Chapter 3 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 individuals comprising them have the right the 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 nation’s 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: 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.”

OF LAW 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. 1993 Nuuk Declaration on Environment and Development in the Arctic States Principle 7 “We 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.”

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: 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".

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 35

PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW 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 Humankin d 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 it, as well as of the global nature of many besetting environmental problems and the critical importance of those problems. It is thus increasingly acknowledged 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 36

Chapter 3 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 community’s interest in these is probably stronger, generally speaking, than it is with respect to common though the contours of that interest are concern, 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 nonstate 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 decisionmaking. 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,

PRINCIPLES AND CONCEPTS INTERNATIONAL ENVIRONMENTAL

Chapter 3

OF LAW Dr. Daniel B. Magraw Jr., President, Center for International Environmental Law (CIEL) Barbara Ruis, Legal Officer, Division of Policy Development and Law, UNEP

has as one of its targets (target 12) to “Develop further an open, rule-based, predictable, nondiscriminatory trading and financial system. Includes a commitment to good governance, development, and poverty reduction - both nationally and internationally.”

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LAW AND THE

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DECLARATION OF PRINCIPLES OF INTERNATIONAL LAW RELATING TO SUSTAINABLE DEVELOPMENT , (United Nations General Assembly, Doc. A/57/329, 31 August 2002, International Law Association, New Delhi , adopted in New Dehli, 6 April 2002). Nicolas De Sadeleer, E NVIRONMENTAL PRINCIPLES : FROM POLITICAL SLOGANS TO LEGAL RULES , (Oxford University Press, 2002). Joseph F. DiMento, T HE GLOBAL ENVIRONMENT AND University of Texas Press, 2003).

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David Freestone and Ellen Hey (Eds.), T HE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW : THE CHALLENGE OF IMPLEMENTATION , (Boston: Kluwer Law International, 1996). Anita Margrethe Halvorssen, E QUALITY AMONG UNEQUALS IN INTERNATIONAL ENVIRONMENTAL LAW : IFFERENTIAL D TREATMENT FOR DEVELOPING COUNTRIES , (Boulder; Westview Press, 1999). David Hunter, James Salzman, Diuwood Zaelke, I SERIES, (Foundation Press, 2002).

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ENVIRONMENTAL LAW AND POLICY , CHAPTER 7, CASEBOOK

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PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW Alexandre Kiss and Dinah Shelton, I third edition 2004).

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Chapter 3 ENVIRONMENTAL LAW , (Transnational Publishers Incorporated,

Graham Mayeda, Where Should Johannesburg Take Us? Ethical and Legal Approaches to Sustainable Development in the Context of International Environmental Law, 15 OLO . J. INT ’L. L. & OL ’Y 29, (Winter C P 2004). Dr. Hans-Joachim Priess & Dr. Christian Pitschas, Protection of Public Health and the Role of Precautionary Principle under WTO Law: A Trojan Horse before Geneva’s Walls?, 24 F ORDHAM INT ’L L. J. 519, ( 2000). REPORT OF THE INTERNATIONAL ENVIRONMENTAL CONFERENCE ON CODIFYING THE RIO PRINCIPLES IN NATIONAL LEGISLATION , (The Hague, 22-24 May 1996, organized by the Netherlands Ministry of Housing, Spatial Planning and the Environment, Publikatiereeks milieubeheer, No. 1996/4). RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT : PPLICATION AND IMPLEMENTATION , REPORT OF THE SECRETARYA E/CN.17/1997/8 , 10 February 1997). GENERAL , (United Nations, Economic and Social Council, Philippe Sands, P RINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW , (Cambridge University Press, second edition, 2003). Nico Schrijver, S OVEREIGNTY OVER NATURAL RESOURCES , BALANCING RIGHTS AND DUTIES ,(Cambridge University Press, 1997). Maurice Sheridan and L. Lavrysen, NVIRONMENTAL LAW PRINCIPLES IN PRACTISE , (Bruxelles: Bruylant, 2002). E Krista Singleton-Cambage, I NTERNATIONAL LEGAL SOURCES AND GLOBAL ENVIRONMENTAL CRISES : THE INADEQUACY OF PRINCIPLES , TREATIES AND CUSTOM , (2 ILSA J Int’l & Comp L 171, Fall 1995). Candice Stevens, Interpreting the Polluter Pays Principle in the Trade and Environment Context, 27 C INT ’L L. J. 577 (Summer, 1994).

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Arie Trouwborst, E VOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW , (Hague; London: Kluwer Law International, 2002). C.G. Weeramantry, N AURU : NVIRONMENTAL DAMAGE UNDER INTERNATIONAL TRUSTEESHIP , (Melbourne; New E York: Oxford University Press, 1992). World Commission on Environment and Development, O

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COMMON FUTURE ,(Oxford Unversity Press, 1987).