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
4. Of particular importance are the
to the emergence of an increasing
principles
established
at
two
number of concepts, principles and
important United Nations conferences,
norms
(i.e.
binding
rules
of
the 1972 Conference on the Human
international law). The reason why
Environment (Stockholm Conference)
principles and concepts play such
and
the
1992
United
Nations
important role is linked to the origin
Conference
on
Environment
and
and development of
international
Development (UNCED) in Rio de
environmental law. Environmental law
Janeiro. Both of these conferences
has developed mainly in a piecemeal
produced declarations of principles (the
fashion, not in a structured orderly
1972 Stockholm Declaration and the
way,
as ad hoc responses to
1992 Rio Declaration, respectively),
environmental threats and challenges.
which were adopted by the United
Indeed, in the case of UNEP, this was
Nations General Assembly. Together
the way till 1982 when the first ten
with the hundreds of international
year programme of environmental
agreements that exist relating to
law, often referred to as Montevideo
protecting the environment (including
Programme I, was agreed. Thereafter
human health), the principles in the
this has been prepared and approved
1972 Stockholm Declaration and 1992
by the Governing Council for each
Rio Declaration are widely- regarded as
subsequent ten years: Montevideo
the
underpinnings
of
international
Programme II in 1993 and Montevideo
environmental law.
Programme III in 2001. There are
many international arenas and many
5. The
Rio
Declaration
contains
a
international instruments dealing with
preamble
and
twenty-seven
specific environmental problems. Not
international
environmental
law
surprisingly, therefore, principles and
principles that guide the international
concepts have been repeated or
community in its efforts to achieve
referred to in many different treaties
sustainable development. Since the
or
non-binding
instruments.
The
adoption of the Rio Declaration, major
frequent inclusion of these principles
developments
in
international
and concepts in international legal
environmental law have taken place
instruments reinforces them and,
that affect the definition, status and
together with state practice, will
impact of principles and concepts in
continue to contribute to the creation
international
environmental
law.
of
a
global
framework
for
These
international environmental law.
developments
include
the
is varied and may be subject to
negotiation and entry into force of
disagreement among states. Some
several
major
multilateral
principles are firmly established
in
agreements. (See chapters 1, 4, 7,
international law, while others are
9, 10, 11, 12, 13, 14, 15 and 19 of
emerging and only in the process of
this Manual).
gaining acceptance, representing more
recent concepts. Some principles are
more in the nature of guidelines or
6. A
general
characteristic
of
present
policy
directives
which
do
not
international environmental law is the
necessarily give rise to specific legal
utilization of non-binding international
rights and obligations. Principles have
instruments. Such texts are often easier to
acquired
recognition, among other
negotiate and amend in the light of new
means, through state practice, their
problems where scientific knowledge and
incorporation
in
international
legal
public awareness can be the major
instruments,
their
incorporation
in
factors pressing for international action.
national laws and regulations, and
Principles in non-binding texts can help
through judgements of courts of law and
develop international environmental law
tribunals.
Some
principles
are
and directly or indirectly give birth to
embodied or specifically expressed in
new legal rules in conventions and/or
global
or
regionally
binding
customary law.
instruments,
while
others
are
predominantly based in customary law.
7. The
legal
status
of
international
In many cases it is difficult to
environmental law principles and concepts

establish the precise parameters or legal 9.

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.

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 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

24

7. Prevention
8. Polluter Pays Principle
9. Access and Benefit Sharing
regarding Natural Resources
10.Common Heritage and Common
Concern of Humankind
11.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

2. Inter-Generational and IntraGenerational 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

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.
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
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.

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

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 decisionmaking
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
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 IntraGenerational 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 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
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
considering the concept of intergenerational
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

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 within their
jurisdiction or control do not cause
damage to the environment of other

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

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,
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. 24142, 1996).
26. Stockholm Principle 21/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 welltransboundary 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.

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 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
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

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
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, 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.

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 1992
enforcement
of environmental
Rio Declaration
laws. These concepts
imply that
Principlealso
7
NGOs should be provided at least
States shall cooperate in a spirit of
observer
status
in
international
global partnership to conserve, protect
institutions
and
with
respect
to treaties,
and restore the health and integrity of
and
should
be
appropriately
the Earths ecosystem. In view ofrelied
the
upon
for expertise,
information
and
different
contributions
to
global
other
purposes.
environmental degradation, States have
common

but

differentiated

The
developed
35. In responsibilities.
many countries, public
participation
countries are
acknowledge
the responsibility
rights
granted
through
that
they
bear
in
the
international
Environmental
Impact
Assessment
pursuit of sustainable development in
procedures
with
broad
public
view of the pressures their societies
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

34. These
concepts
mean
that
international institutions, such as
international
financial
institutions,
should also implement open and
transparent
decisionmaking
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
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:

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 wellestablished 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
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

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.
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.
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

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
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

adverse effects... The next sentence,

however, repeats Principle 15 almost
verbatim.
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
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).
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:

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
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 Gabikovo 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).
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 longterm 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
57. 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
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
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

prevention also emerges from the

international responsibility not to cause
significant damage to the environment
extraAccidents,
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:

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

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

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 Cooperation 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-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.
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;
(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
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
1992 Rio
indigenous
or Declaration
other
local
22
communities Principle
may exercise
over their
land and waterways or which enable
Indigenous
theircommunities
communities
indigenous
orpeople
otherand
local
and
other
local
communities
have a vital
to
take
part
in
decision-making
role in environmental management and
processes.
development because of their knowledge
traditional
States
should
72. A and
related
issue ispractices.
the extent
to which
recognzse
and
duly
support
their
identity,
indigenous
and
other
local
culture and interests and enable their

many countries in the developing

world, and in their national supreme
courts such as in South Asia, Africa and
elsewhere in the world.
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.
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

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:

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

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

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
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 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, noncorrupt 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, rulebased,
predictable,
nondiscriminatory trading and financial
system. Includes a commitment to
good governance, development, and
poverty reduction - both nationally
and internationally.

37