Principles and Doctrines in Environmental Laws project.
project. The Stockholm declaration, for instance states that policy makers must
A. Precautionary Principle – Republic Act no. 9279
Principle 15 of the Rio Declaration, commonly known as the Precautionary Principle
states:
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.
This principle advocates that the potential harm should be addressed even with
minimal predictability at hand.155 The Precautionary Principle requires a high
degree of prudence on the part of the stakeholders. Decision makers are not only
mandated to account for scientific uncertainty but can also take positive action, e.g.,
restrict a product or activity even when there is scientific uncertainty. Under Rule 20
of the Rules of Procedure for Environmental Cases, the Precautionary Principle is
adopted as a rule of evidence. The Supreme Court’s adoption of the Precautionary
Principle in the newly promulgated Rules of Procedure for Environmental Cases
affords plaintiffs a better chance of proving their cases where the risks of
environmental harm are not easy to prove. (Src: Access to Environmental Justice: A
Sourcebook on Environmental Rights and Legal Remedies)
Standards for Application. – In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2)
inequity
to present or future generations; or (3) prejudice to the environment without legal
consideration of the environmental rights of those affected.
B. Common but differentiated responsibility
The concept of Common but Differentiated Responsibilities (CBDR) was enshrined
as Principle 7 of the Rio Declaration at the first Rio Earth Summit in 1992. The
declaration states: “In view of the different contributions to global environmental
degradation, States have common but differentiated responsibilities. The developed
countries acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the global
environment and of the technologies and financial resources they command.” Similar
language exists in the Framework Convention on Climate Change; parties should act
to protect the climate system “on the basis of equality and in accordance with their
common but differentiated responsibilities and respective capabilities.”
The principle holds that although all countries are responsible for the development of
global society, each has a different set of capabilities that they can contribute to this
consider, “the applicability of standards which are valid for the most advanced
countries but which may be inappropriate and of unwarranted social cost for the
developing countries.” CBDR aims to take these differences into account when goals
and benchmarks are applied to global development agendas. The logic is that if the
expectations levied on countries are more appropriate to their national capabilities
(social, economic, environmental, etc.), individual country efforts will more
effectively complement each other. (src: Policy Brief and Proposals: Cristina Diez)
Common but Differentiated Responsibilities and Respective Capabilities (CBDR–
RC) is a principle within the United Nations Framework Convention on Climate
Change (UNFCCC) that acknowledges the different capabilities and differing
responsibilities of individual countries in addressing climate change.
The principle of CBDR–RC is enshrined in the 1992 UNFCCC treaty, which was
ratified by all participating countries. The text of the convention reads: “… the
global nature of climate change calls for the widest possible cooperation by all
countries and their participation in an effective and appropriate international
response, in accordance with their common but differentiated responsibilities and
respective capabilities and their social and economic conditions.”
CBDR-RC has served as a guiding principle as well as a source of contention in the
UN climate negotiations.
Reflecting CBDR-RC, the Convention divided countries into “Annex I” and “non-
Annex I,” the former generally referring to developed countries and the latter to
developing countries. Under the Convention Annex I countries have a greater
mitigation role than non Annex-I countries.
Since 1992 countries like China have gained new capabilities while maintaining
relatively low per capita emissions, and tensions about the defined lines of the Annex
I and non-Annex I countries have arisen. CBDR-RC and the annex classifications
were codified in the 1997 Kyoto Protocol, and Annex I country emissions reductions
were legally bound. A primary driver for the failure of the U.S. to ratify the Kyoto
Protocol was the domestic concern that middle-income developing countries were
not required to take action to address their greenhouse gas (GHG) emissions despite
their growing capability.
In the years following the 1992 treaty, the trajectory of emissions in populous
developing countries also drew attention. Fossil fuel–based development by heavily
populated developing countries would prevent stabilization of GHG concentrations –
the agreed upon “ultimate objective” of the UNFCCC – because much of the global
emissions budget has already been exhausted by emissions from developed
countries. Controversy ensued over the question of responsibility for the costs
1
entailed in switching to a sustainable development path, particularly for large but
poor countries with very low per-capita emissions and very little access to finance.
However, in more recent UNFCCC agreements – starting with Durban in 2011 –
Parties have changed their position to allow for countries to individually determine
their “contribution” to addressing GHG emissions. This new climate agreement is to
be “applicable to all,” and approaches differentiation through the implementation of
a bottom–up scheme to determine a global effort.
CBDR-RC remains a sticking point, as does the role of equity (historic versus
current responsibility for climate change), the role of Annexes, and the role each
country should play in in UNFCCC climate negotiations. In the 2014 negotiations in
Lima, Parties agreed on a new phrase, ‘common but differentiated responsibilities
and respective capabilities, in light of different national circumstances,’ perhaps
hinting at how an agreement in Paris would address the issue. (src: https://c
limatenexus.org/climate-change news/common-but-differentiated-responsibilities-
and-respective-capabilities-cbdr-rc/)
C. Free, prior and informed consent – Republic Act No. 8371
The Indigenous Peoples Rights Act of 1997 (IPRA) defines Indigenous Cultural
Communities and Indigenous Peoples (ICCs/IPs) as:
A group of people or homogenous societies identified by self-ascription and
ascription by other, who have continuously lived as an organized community on
communally bounded and defined territory, and who have, under claims of
ownership since time immemorial, occupied, possessed customs, tradition and other
distinctive cultural traits, or who have, through resistance to political, social and
cultural inroads of colonization, non-indigenous religions and culture, became
historically differentiated from the majority of Filipinos. ICCs/ IPs shall likewise
include peoples who are regarded as indigenous on account of their descent from the
populations which inhabited the country, at the time of conquest or colonization, or
at the time of inroads of non-indigenous religions and cultures, or the establishment
of present state boundaries, who retain some or all of their own social, economic,
cultural and political institutions, but who may have been displaced from their
traditional domains or who may have resettled outside their ancestral domains.
a. Roles of the ICCs/IPs
The ICCs/IPs are stewards of their ancestral domain. They are tasked with the
responsibility to maintain, develop, protect and conserve their ancestral domains or
portions thereof.236
Right to Make a Free Prior and Informed Consent Pursuant to their right to
participate in decision making, ICCs/IPs also have the right to give a Free Prior and
Informed Consent. This is defined as “the consensus of all members of the ICCs/IPs
to be determined in accordance with their respective customary laws and practices,
free from any external manipulation, interference and coercion, and obtained after
fully disclosing the intent and scope of the activity, in a language and process
understandable to the community.”
In order for their consent to fall under this definition, “it should be based on reliable
and comprehensive information on the different options available and the
consequences of the decision to be made.” Furthermore, in relation to Contract Law
concepts, the consent of ICCs/IPs must not be vitiated by mistake, violence,
intimidation, undue influence or fraud, otherwise the contract will be voidable.243
ICCs/IPs must also be capacitated to give consent in order for their consent to be
valid. (Src: Access to Environmental Justice: A Sourcebook on Environmental
Rights and Legal Remedies)
D. Doctrine of inter-generational responsibility • Oposa v. Factoran, G.R.
No. 101083, 31 July 1991, 224 SCRA 792
The UNEP Training Manual on Environmental Law50 cites the “principle of
intergenerational and intragenerational equity” which means that, while “the
present generation has a right to use and enjoy the resources of the Earth, x x x it 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.” This principle has been applied in the Philippines and
India. It is the underpinning logic of the UN Framework Convention on Climate
Change and the Kyoto Protocol.
In the landmark case of Oposa v. Factoran,166 the Supreme Court had the occasion
to discuss the concept of Intergenerational Responsibility. The case was instituted by
minors along with their parents alleging that then Secretary of Natural Resources
Fulgencio Factoran acted with grave abuse of discretion in issuing Timber License
Agreements (TLAs) to cover more areas. Respondents alleged that the minors, who
invoked the right to a balanced and healthful ecology, had no valid cause of action.
On the issue of petitioner’s standing, the Honorable Court held that the minors were
entitled to sue on the basis of Inter-generational Responsibility. The Supreme Court
through Justice Davide explained: This case, however, has a special and novel
element. Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for themselves,
for others of their generation and for the succeeding generations, file a class suit.
Their personality to sue in behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as the right to a balanced and
2
healthful ecology is concerned. Such a right, as hereinafter expounded, considers the
“rhythm and harmony of nature.” Nature means the created world in its
entirety. Such rhythm and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of the country’s
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be equitably
accessible to the present as well as future generations. Needless to say, every
generation has a responsibility to the next to preserve that rhythm and harmony for
the full enjoyment of a balanced and healthful ecology. Put a little differently, the
minors’ assertion of their right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection
of that right for the generations to come. (Src: Access to Environmental Justice: A
Sourcebook on Environmental Rights and Legal Remedies)
E. “Polluter pays” principle
The “polluter-pays” principle states that national public authorities should refrain
from subsidizing the pollution control costs of private enterprises; instead, these
private enterprises should bear the cost of controlling the pollution that they cause.
This principle has been applied by the courts in the U.S., Japan, Colombia and India
in cases requiring toxic cleanup. It has in fact been adopted in the European Union to
rationalize the imposition of stiff taxes on tobacco. (Src: Access to Environmental
Justice: A Sourcebook on Environmental Rights and Legal Remedies)
Congress has adopted the “polluter-pays principle.” Republic Act No. 9275 or the
Philippine Clean Water Act of 2004 declared as illegal certain acts such as the
“discharging, depositing or causing to be deposited material of any kind directly or
indirectly into the water bodies or along the margins of any surface water where the
same shall be liable to be washed into such surface water, either by tide action or by
storm, floods or otherwise, which could cause water pollution or impede natural flow
in the water body.” At the same time, violators are penalized with a stiff fine and, if
they fail to undertake cleanup operations willfully or through gross negligence, they
shall be punished by imprisonment and a fine of P50,000 to P500,000 per day for
each day of violation.
It is true that in Metropolitan Manila Development Authority, et al. v. Concerned
Residents of Manila Bay the Court held certain government agencies primarily
responsible for the cleanup of Manila Bay. As no private enterprise was impleaded
as a polluter, none was charged for the cost of the cleanup. However, it must be
borne in mind that the Court held the government agencies liable under a “continuing
mandamus” to undertake clean-up activities to implement the decision. The activities
which they are compelled to undertake may include tracing the pollutants to
whatever source, whether public or private, and cracking the whip on them. (Src:
Access to Environmental Justice: A Sourcebook on Environmental Rights and Legal
Remedies II. The development of environmental justice in the Philippine legal
system)
• Extended Producer Responsibility
Concept of extended producer responsibility
The concept of Extended Producer Responsibility was first introduced by a Swedish
academic, Thomas Lindhqvist PhD, in a 1990 report to the Swedish Ministry of the
Environment. At present, he is an associate professor and Director of Research
Programs at the International Institute for Industrial Environmental Economics at
Lund University in Sweden.
Lindhqvist, in his subsequent reports to the Swedish Ministry of the Environment,
defined extended producer responsibility as an environmental protection strategy
to reach an environmental objective of a decreased total environmental impact of a
product, by making the manufacturer of the product responsible for the entire life-
cycle of the product and especially for the take-back, recycling, and final disposal.
In 2001, the Organization for Economic Cooperation and Development (OECD)
defined extended producer responsibility as a concept where manufacturers and
importers of products should bear a significant degree of responsibility for the
environmental impacts of their products throughout the product life-cycle, including
upstream impacts inherent in the selection of materials for the products, impacts
from manufacturers’ production process itself, and downstream impacts from the use
and disposal of the products. In the field of waste management, extended producer
responsibility is a strategy designed to promote the integration of environmental
costs associated with goods throughout their life cycles into the market price of the
products. (src: https://www.manilatimes.net/ an-extended-producer-responsibility-
policy-for ph/420998/)
Organisation for Economic Co-operation and Development (OECD) defines
Extended Producer Responsibility (EPR) as an environmental policy approach in
which a producer’s responsibility for a product is extended to the post-consumer
stage of a product’s life cycle. An EPR policy is characterised by:
1. the shifting of responsibility (physically and/or economically; fully or partially)
upstream toward the producer and away from municipalities; and
2. the provision of incentives to producers to take into account environmental
considerations when designing their products.
3

While other policy instruments tend to target a single point in the chain, EPR seeks
to integrate signals related to the environmental characteristics of products and
production processes throughout the product chain.
F. Sustainable Development
Sustainable Development is the process of developing land, cities, businesses,
communities, and so forth that “meets the needs of the present without
compromising the ability of future generations to meet their own needs.” The
concept of Sustainable Development carries two key concepts. First, is the existence
of needs with particular focuses to the needs of the poor. Second, is that the
environment has limitations in meeting the needs of present and future generations.
The Principle of Sustainable Development addresses the need to reconcile issues of
development and environmental protection. It recognizes that development requires
economic exploitation to satisfy the needs of the growing population while at the
same time protecting the environment for future generations. The concept of
sustainable development seeks to achieve exploitation of resources while leaving the
environment intact for the use of future generations. Non-renewable resources must
be used as efficiently as possible.162 According to this principle, there must be
optimal management of natural resources.
The Principle of Sustainable Development is embodied in the Philippine Agenda 21
which was formulated as a response to the country’s commitments in the 1992 Earth
Summit in Rio de Janeiro, Brazil. (Src: Access to Environmental Justice: A
Sourcebook on Environmental Rights and Legal Remedies)
• Constitution, art. II, sec.16
Section 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.
• AGENDA 21 (United Nations Conference on Environment and Development,
Rio de Janeiro, June 3-14, 1992)
• Philippine Agenda 21
• Executive Order No. 15, “Creating A Philippine Council For Sustainable
Development” (September 1, 1992)
• Executive Order No. 62 “Further Strengthening the Philippine Council for
Sustainable Development (PCSD)” (December 10, 2001)
• Memorandum Order No. 399 “Directing the Operationalization of the
Philippine Agenda 21 and Monitoring Its Implementation” (September 26,
1996)
• Republic of the Philippines v. The City of Davao, 388 SCRA 691 (2002)
Republic of the Philippines v. City of Davao, G.R. No. 148622, Sept. 12, 2002, 388
SCRA 691
Facts: The City of Davao filed an application with the Environmental Management
Bureau (EMB) for a Certificate of Non-Coverage (CNC) for its proposed project, the
Davao City Artica Sports Dome. The EMB denied the application on the ground that
the proposed project was within an environmentally critical area and thus, the City of
Davao should secure an Environmental Compliance Certificate (ECC) instead of a
CNC. The City of Davao filed a petition for mandamus and injunction alleging that
“its proposed project was neither an environmentally critical project nor within an
environmentally critical area, thus, it was outside the scope of the [Environmental
Impact Assessment] system.” The City of Davao argued that it was the ministerial
duty of the EMB to issue the CNC after the submission of the required documents.
The trial court granted the petition and issued a writ of mandamus compelling the
EMB to issue a CNC. The trial court also ruled that a local government unit (LGU) is
not covered under the EIS system. “The petitioners in this case filed a motion for
reconsideration, which was denied. Hence, they filed a petition for review.
Issue: Whether local governments are covered under the EIS system.
Ruling: Yes, local governments are within the scope of the EIS system. Although the
petition has been rendered moot and academic by virtue of a change of
administration which filed a manifestation agreeing with the petitioner, the Court
continued to decide the case. The Court ruled that local governments are within the
scope of the EIS System. Section 16 of the Local Government Code provides that it
is the duty of the LGUs to promote the peoples’ right to a balanced ecology.
“Pursuant to this, an LGU, like the City of Davao, cannot claim exemption from the
coverage of [the EIS system]. As a body politic endowed with governmental
functions, an LGU has the duty to ensure the quality of the environment, which is the
very same objective of [the EIS system].”
Furthermore, Section 4 of PD No. 1586 provides that “no person, partnership or
corporation shall undertake
or operate any such declared environmentally critical project or area without first
4
securing an Environmental
Compliance Certificate issued by the President or his duly authorized
representative. The Civil Code defines
person as either natural or juridical. The State and its political subdivisions, i.e., the
local government units
juridical persons. Undoubtedly therefore, local government units are not excluded
from the coverage of
No. 1586. (Src: Access to Environmental Justice: A Sourcebook on Environmental
Rights and Legal Remedies)
• Laguna Lake Development Authority v. Court of Appeals, 251 SCRA 43
(1995)
Laguna Lake Development Authority v. Court of Appeals, et al.
G.R. Nos. 120865-71, December 7, 1995, 251 SCRA 42
Syllabus:
The provisions of Republic Act No. 7160 or the Local Government Code of 1991 do
not necessarily repeal the aforementioned laws creating the Laguna Lake
Development Authority and granting the latter water rights authority over Laguna
de Bay and the lake region. The Local Government Code of 1991 does not contain
any express provision which categorically expressly repeal the charter of the
Authority. It has to be conceded that there was no intent on the part of the
legislature to repeal Republic Act No. 4850 and its amendments. The repeal of laws
should be made clear and expressed. Thus, the Authority has the exclusive
jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay
to the exclusion of municipalities situated therein and the authority to exercise such
powers as are by its charter vested on it.
Facts:
Republic Act No. 4850 created the Laguna Lake Development Authority (LLDA)
and granted it the authority to manage the environmental resources in the area.
However, with the promulgation of the Local Government Code of 1991, the
municipalities in the Laguna Lake Region interpreted the provisions of this law to
mean that the newly passed law gave municipal governments the exclusive
jurisdiction to issue fishing privileges and fishpen permits within their municipal
waters. Later, LLDA issued a notice to the general public that illegally constructed
fishpens, fish cages, and other aqua-culture structure will be demolished. The
affected fishpen owners filed injunction cases against LLDA before various regional
trial courts. The LLDA filed motions to dismiss the cases against it on jurisdictional
grounds, however, these were denied. The temporary restraining order/writs of
preliminary mandatory injunction, meanwhile, were issued enjoining LLDA from
demolishing the fishpens and similar structures in question. As a result, LLDA filed
a a petition for certiorari, prohibition, and injunction.
are Issue:
PD Whether Laguna Lake Development Authority has jurisdiction over the issuance of
fishery privileges.
Ruling:
Yes. The Laguna Lake Development Authority has the exclusive jurisdiction to
issue permits for the enjoyment of fishery privileges in Laguna de Bay and the
authority to exercise such powers as are by its charter vested on it. The
provisions of the Local Government Code do not necessarily repeal the
aforementioned law creating the Laguna Lake Development Authority as it does
not contain any express provision which categorically and/or expressly repeal
the charter of LLDA. It has to be conceded that there was no intent on the part of
the legislature to repeal `-*/repeal of laws should be made clear and expressed. It
is clear that the power of the local government units to issue fishing privileges
was granted for revenue purposes. On the other hand, the power of the LLDA to
grant permits for fishpens, fishcages and other aqua-culture structures is for the
purpose of effectively regulating and monitoring activities in the Laguna de Bay
region and for lake quality control and management. It is in the nature of police
power. Accordingly, the charter of LLDA which embodies a valid exercise of
police power should prevail over the Local Government Code of 1991 on
matters affecting Laguna de Bay. (Src: Access to Environmental Justice: A
Sourcebook on Environmental Rights and Legal Remedies)
G. Intergenerational and intragenerational equity
H. Responsibility for Transboundary Harm - Principle 21 of the
Stockholm Declarations
Sovereignty Over Natural Resources and the Obligation Not to Cause Harm.
Since the 1970s, state sovereignty over natural resources is always read with the
obligation not to cause harm. Principle 21 of the Stockholm Declaration, which is the
cornerstone of International Environmental Law,144 reflects these principles: 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. The sovereign right over natural
resources includes the right of the states to be free from external interference. The
5
exercise of state sovereignty, however, has its limits. Principle 21 provides that the
state has the responsibility not to cause harm beyond the limits of its national
jurisdiction. The No Harm Principle recognizes that a state’s activities may be
transboundary in nature and is also meant to balance the sovereign principle of states
and require them to take responsibility for their actions which cause harm outside
their own territory. (Src: Access to Environmental Justice: A Sourcebook on
Environmental Rights and Legal Remedies)
I. Cooperation and Common but Differentiated Responsibilities
J. Common Heritage and Common Concern of Humankind
LEGAL STATUS OF NATURAL RESOURCES AND COMMON AREAS
Many of the principles, duties and obligations discussed above often focus on
environmental pollution control. Just as important for achieving sustainable
development are issues relating to the sustainable use of natural resources.
Traditionally, natural resources located wholly within national boundaries have been
considered to be within the province of national law and development priorities. For
resources that are shared by different nations (e.g., rivers or migratory wildlife),
however, there is a need for international regulation. Similarly, global common areas
beyond national jurisdiction (e.g., the high seas, Antarctica, and outer space) require
international cooperation, and have led to the advent of a new concept – THE
COMMON HERITAGE OF HUMANKIND.
Even more recently, the increasing urgency of international environmental issues and
the increasing recognition that all states are ecologically interrelated have led to a
new challenge to State sovereignty over natural resources. This challenge draws
from the intellectual roots of the common heritage of humankind, to suggest that
humankind has a common concern in some resources (e.g., biodiversity) or activities
(e.g., emissions of greenhouse gases) which might otherwise be considered wholly
within the province of State sovereignty. These concepts and their implications for
international environmental law and sustainable development are discussed below.
PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES
Sovereignty in the relations between States signifies independence; that is, the right
to exercise, within a portion of the globe and to the exclusion of other States, the
functions of a State, such as the exercise of jurisdiction and enforcement of laws over
persons therein. The concept of permanent sovereignty over natural resources,
though subsumed under the broader principle of territorial sovereignty, is of a
relatively recent origin. The United Nations General Assembly declared, inter alia,
that the right of peoples and nations to permanent sovereignty over their natural
wealth and resources must be exercised in the interest of their national development
and of the well-being of the people of the States concerned.1 The resolution further
declared that the exploration, development and disposition of such resources, as well
as the import of foreign capital required for these purposes, should conform with
rules and conditions that the people and nations freely consider to be necessary or
desirable with regard to the authorization, restriction or prohibition of such activities.
National sovereignty over natural resource development issues has been reaffirmed
in many international agreements, declarations and resolutions. For example, the
UNESCO Convention for the Protection of the World Cultural and Natural Heritage,
while obliging contracting States to cooperate in protecting certain cultural and
natural heritage sites, emphasizes full respect for the sovereignty of States on whose
territory the sites are located.2 More recently, the 1992 Biodiversity Convention
affirms that States have sovereign rights over their natural resources and the
authority to regulate access to genetic resources through national legislation.
The concept of permanent sovereignty is not absolute and is subject to a general duty
not to harm the interests of other States. As stated in the 1972 Stockholm Declaration
and reaffirmed in the 1992 Rio Declaration:
States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction.
Moreover, as discussed above, permanent sovereignty may be slowly conditioned to
reflect the goal of sustainable development. The emergence of the concept of a
"common concern" of humankind may help resolve the challenge to permanent
sovereignty over natural resources. As knowledge of the ecological interrelatedness
of the planet increases, more activities or resources that qualify as "common
concerns" will increase, thus providing the conceptual justification for appropriate
international regulation.
SHARED RESOURCES
This concept refers to resources that do not fall wholly within the territorial
jurisdiction of one State, but straddle (stand on either side of) common political
borders or migrate from one territory to another. Examples include river basins,
enclosed and semi-enclosed seas, mountain systems, watershed areas, and migratory
wildlife. The primary concept governing shared resources is the general obligation
for equitable or harmonious utilization of such resources.
6
Although the principle of equitable utilization entails a broad range of
responsibilities, most of them relate to cooperation, notification and consultation. As
the 1974 Charter of Economic Rights and Duties of States notes:
In the exploitation of natural resources shared by two or more countries, each State
must co-operate on the basis of a system of information and prior consultation in
order to achieve optimum use of such resources without causing damage to the
legitimate interest of others.
Indeed, virtually all the principles and discussions relating to international
cooperation and the duty to avoid harm apply to State activities with respect to
shared natural resources.
COMMON HERITAGE OF HUMANKIND
The global common areas refers to those areas beyond the limits of national
jurisdiction such as the high seas, the sea-bed, Antarctica, outer space, or the ozone
layer. For resources in these areas, the concept of permanent sovereignty is generally
not applicable. Moreover, although the rules of cooperation and equitable use that
apply to shared resources also apply to global commons resources, participants in the
Law of the Sea Conference perceived a need to generate a new conceptual
framework for addressing these resources. Although the first derivation of the
common heritage of humankind may have related to the protection of certain cultural
or natural landmarks9 and outer space,10 it became a central principle in the 1982
U.N. Law of the Sea Convention. Seeking to institute a common management regime
for the deep sea-bed, the convention states:
The Area and its resources are the common heritage of mankind. No state shall claim
or exercise sovereignty or sovereign rights over any part of the Area or its
resources.... All rights in the resources of the Area are vested in mankind as a
whole ... the Authority shall provide for the equitable sharing of financial and other
economic benefits derived from activities in the Area....11
Although the global commons are open for legitimate, peaceful and reasonable use
by all States, they cannot be appropriated by any one State. States must cooperate in
the conservation and sustainable utilization of the natural resources of the commons
and, in its purest form, must share in the economic wealth of those areas.
Most recently, the concept of common heritage of humankind has been applied in the
protection of Antarctica and the decision to make that continent essentially the
equivalent of a global park, with very limited rights for exploitation, at least over the
next fifty years.12
COMMON CONCERN OF HUMANKIND
Although the common heritage of humankind has proven to be a useful concept for
developing an international regulatory regime for resources in global commons, the
concept has not been widely accepted in relation to other resources or activities of
interest to the international community. The common heritage concept is viewed as
being in direct opposition to concepts of permanent sovereignty over natural
resources. It thus provides a less compelling conceptual justification for regulating
such internal issues as the conservation of biodiversity or the emission of greenhouse
gases.
At the same time, there is a growing consensus about the ecological interdependence
of human activities around the planet and a growing understanding that all of
humanity may have an interest (based on environmental concerns) in certain
activities or resources wholly within State boundaries. The compromise reached with
respect to the Biodiversity Convention and the Climate Change Convention is that
there are common "concerns" of humankind. This principle may never be defined in
any precise way, but it nonetheless provides the conceptual framework for
international regulation and lawmaking with respect to what would otherwise be
activities or resources within the sovereign control of individual States.
As international concern over environmental issues broadens, the concept of a
common concern of humankind can be expected to expand to other areas. Indeed, if
there is to be an international law of sustainable development that actually constrains
domestic development decisions, conceptually it will come from the same increased
understanding of ecological interdependence that has led to the development of the
concept of common concern. (Src: CONCEPTS AND PRINCIPLES OF
INTERNATIONAL LAW: AN INTRODUCTION by David Hunter, Julia Sommer
and Scott Vaughan http://www.rrojasdatabank.info/xpaper10.htm)