BAZE UNIVERSITY ABUJA

FACULTY OF LAW

OSUCHUKWU ADAEZE C.

BU/23C/PGS/8820

INTERNATIONAL ENVIRONMENTAL LAW

LAW 815
A Legal Examination of the Principle of Sustainable Use and Equitable Utilization of
Natural Resources on the Growth of International Environmental Law.
ABSTRACT

The ever-growing pressure on natural resources due to human activity has necessitated a
shift in international environmental law (IEL) towards principles that ensure
sustainability and equity. This research paper examines the principle of sustainable use
and equitable utilization of natural resources, analyzing its impact on the growth and
development of IEL. This research paper explores the historical emergence of the
principle, its interpretation in key legal instruments, the challenges in implementing it
effectively, and its future potential in shaping a more robust and equitable international
environmental legal framework. The principle of sustainable use and equitable utilization
of natural resources has emerged gradually in international law over several decades. The
principle of sustainable use and equitable utilization has emerged in response to growing
concerns about environmental degradation and resource scarcity. While still evolving, it
offers a framework for managing natural resources in a way that benefits both present and
future generations, ensuring a more just and sustainable future.

The paper highlights the shift from a focus on resource exploitation towards a paradigm
of responsible management practices that ensure resource availability for future
generations. It then examines how the principle has been incorporated into major treaties
like the Convention on Biological Diversity and the Law of the Sea Convention,
broadening the scope of IEL beyond pollution control.

Furthermore, the paper explores the challenges associated with implementing this
principle, such as the lack of clear definitions and the difficulties in achieving equitable
utilization between developed and developing countries. It concludes by discussing how
ongoing efforts to refine the principle, strengthen enforcement mechanisms, and foster
international cooperation can contribute to a more robust and effective IEL framework
for managing the Earth's natural resources sustainably and equitably.
1.1 HISTORICAL BACKGROUND AND EVOLUTION OF THE PRINCIPLE OF
SUSTAINABLE USE AND EQUITABLE UTILIZATION OF NATURAL
RESOURCES

Due to the fact that International Environmental law begun as an offshoot of

international law, at the time, international law was primarily focused on freedom of
access to and exploitation of natural resources, with limited consideration for
sustainability or equitable distribution. Environmental concerns were not yet a major
focus in international law, and the long-term consequences of resource exploitation were
not fully understood. The principle of sustainable use and equitable utilization of natural
resources forms part of the threefold elements of sustainable development namely; Inter-
generational Equity, Sustainable use of natural resources and Integration of environment
and development. This principle aims at judicious, wise, careful, or rational use of natural
resources.

The early antecedents marking the emergence of the principles of sustainable use
and equitable utilization of natural resources was first seen in the mid-twenties when
conservation movements had just begun its evolution in several nations in the nineteenth
century and these movements in general only tackled environmental problems within a
single nation1. Earlier efforts to develop IEL largely focused on the conservation of
wildlife, i.e. fisheries, birds, and seals and to a restricted extent, the protection of rivers
and seas; and following these were the early treaties designated to protect only a few
species which were regarded as valuable resources to humans rather than for the purpose
of environmental protection per se. These included the Paris Convention for the
Protection of Useful Birds to Agriculture, 1902, Treaty for the Preservation of Fur Seals,
Washington, 1911, Convention for the Regulation of Whaling, 19312 etc. During the
1930s and 1940s, countries concluded several agreements aimed at protecting fauna and
flora in specific regions, namely the Western Hemisphere and Africa3. The judicial
attempt that highlighted the principle of sustainable use and equitable utilization was seen
in the case of the Pacific Fur Seal Arbitration between Great Britain v. United States in
1893 which concerned a conflict between the United States and the United Kingdom in
relation to the protection of fur seals in the Bering Sea from overexploitation in areas

1
Innocent C.S. Okogbule, Desmond O.N. Agwor, Empire Hechime Nyekwere, The Historical Development of
International Environmental Law: A Legal Appraisal, Global Journal of Politics and Law Research, Vol.10, No.8,
pp.33-54
< https://eajournals.org/> accessed 1 March
2
WWF-India & MoEF-India (Note 1) p.2.
3
Edith Brown Weiss, The Evolution of International Environmental Law, Georgetown University Law Center,
(2011) pp 3
< https://scholarship.law.georgetown.edu/facpub/1669> accessed 1 March
beyond national jurisdiction. This award set forth regulations for the proper protection
and preservation of fur seals outside the jurisdictional limits of the United States. The
arbitral tribunal however refused any submission that the United States had the right to
claim jurisdiction by enacting measures connecting to the conservation of living
resources beyond their jurisdiction, even though that meant the extinction of the species4.

The paradigm shift in the direction of international environmental law only began
in the 1970’s with the emergence of the first ever international convention which began
concretizing the principles of IEL such as that of sustainable use and equitable utilization.
The Stockholm declaration, 1972 marked a turning point in the world view of
international environmental law. Principle 2 of the convention highlighted that the natural
resources of the earth including air, water, land, flora and fauna and especially
representative ecosystems must be preserved for the benefit of present and future
generations through careful planning and management. It marked a turning point,
emphasizing the preservation of natural resources for future generations through careful
planning and management. This concept of sustainable development, use and equitable
utilization for the benefit of future generations, encompassing both economic growth and
environmental protection, began to gain traction. This declaration also heralded several
important multilateral agreements such as the 1973 Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES).

There further emerged other treaties and conventions which will be critically
looked at in the next part of this work which highlighted and further solidified the
importance of both sustainable use and equitable utilization such as the World Charter for
Nature 1982, the Law of the Sea Convention 1982, the Rio Convention of 1992, the
United Nations Framework Convention on Climate Change 1992, the Convention on
Biological Diversity 1992 and a host of other treaties and conventions. But for the
purpose of this research we will be looking at the above listed.

4
Behring Sea Fur Seals Fisheries Arbitration (Great Britain v United States), Moore’s International Arbitrations
Awards (1893) p.755.
2.1 THE LEGAL FRAMEWORK AND IMPACT OF THE PRINCIPLE OF
SUSTAINABLE USE AND EQUITABLE UTILIZATION ON THE GROWTH OF
IEL

It has been shown that prior to the 1970s, IEL primarily focused on access to and
exploitation of natural resources, with minimal concern for long-term consequences. The
emergence of the sustainable use and equitable utilization principle shifted the focus towards
more responsible management practices that ensure resource availability for future
generations as can be seen embedded in the Stockholm Declaration and the Rio Declaration.

There are provided under the provisions of the Stockholm declaration, a number of
principles which preempt party states to judiciously utilize and conserve natural resources
and outlines steps to be taken for the achievement of said objectives. Principle 2 provides
that “the natural resources of the earth including the air, water, land, flora, and fauna and
especially representative samples of natural ecosystems, must be safeguarded for the benefit
of present and future generations. Principle 3 to 5 states that it the case of renewable
resources, they must be maintained and where practicable restored or improved while in the
case of non-renewable resources, it ought to be managed in such a manner as to guard
against future exhaustion while also being equitably used and distributed for the benefit of
mankind. As such there is placed upon states a responsibility to safeguard and wisely
manage these resources, especially those facing the threat of extinction in the course of
planning and economic development5. The Stockholm convention prompts party states to
adopt more integrated and co-ordinated approaches in their development and planning in
order to achieve rational management of natural resources 6. The Rio convention as well
buttresses the above position of principle 2 of the Stockholm Declaration stating under
principle 3 that states have a right to develop, however this must be fulfilled in a manner that
the developmental and environmental needs of the future generation might be equitably met
as well. This entails eliminating unsustainable patterns of production and consumption and
promoting more appropriate policies to that effect 7. Principle 4 of the World Charter for
Nature 1982 provided for the proper management of all ecosystems, organisms, land, marine
and atmospheric resources being utilized by man for the purpose of maintaining optimum
sustainable productivity. In the Gabčíkovo-Nagymaros Dam Dispute8 between Hungary vs.
5
Professor Dan Bodansky, Regional Courses in International Law, Codification Division of the United Nations
Office of Legal Affairs,(2017), p 11
< https://efaidnbmnnnibpcajpcglclefindmkaj/https://legal.un.org/avl/studymaterials/rcil-laac/2017/book3_1.pdf>
accessed 1 March
6
Declaration of the United Nations Conference on the Human Environment 1972, Chapter 2, Principle 13, p.2
7
Rio Declaration on Environment and Development 1992, Annex 1, Principle 8, p.14
8
Gabčikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7, [1997]
ICJ Rep 88, (1998) 37 ILM 162, ICGJ 66 (ICJ 1997)
< https://opil.ouplaw.com/display/10.1093/law:icgj/66icj97.case.1/law-icgj-66icj97> accessed 1 March
Slovakia, where the issue of contention rested upon the environmental concerns which arose
from an agreement to build a joint dam project on the Danube River for hydroelectric power
generation and flood control. Hungary argued that the project violated the principle of
sustainable use, jeopardizing the Danube's ecological balance. The ICJ in acknowledging the
concerns expressed by Hungary for its natural environment opined that “"the environment is
not an abstraction but represents the living space, the quality of life and the very health of
human beings, including generations unborn. 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”9. The court ordered a halt to construction and instructed both
parties to look afresh at the effects on the environment of the operation of the Gabcíkovo
power plant.

This principle has been incorporated into major international environmental

treaties and integration into these key legal frameworks have aided in the establishment of
legal frameworks for discussions and negotiations surrounding resource utilization and has
elevated the importance of sustainability and equitable distribution of benefits from resource
extraction. A legal framework such as the convention on biological diversity (CBD) bases its
objectives upon the conservation and sustainable use of biodiversity and equitable sharing of
benefits accruing from its utilization. This convention set out ‘sustainable use’ to mean “the
use of components of biological diversity in a way and at a rate that does not lead to a long
term decline of bio-diversity, thereby maintaining its potential to meet the needs and
aspirations of present and future generations”10. The convention also prescribes that states
party to it shall incorporate its objectives in their national decision-making, adopt measures
to minimize adverse impact on biological diversity, shall take all practicable measures to
promote and advance access to such resources on a fair and equitable basis. The Guarani
Aquifer Dispute11 between Argentina, Brazil, Paraguay, and Uruguay which involved the
Guarani Aquifer, one of the world's largest freshwater reserves which is situated beneath
parts of Argentina, Brazil, Paraguay, and Uruguay. Concerns arose about unsustainable
water extraction for agricultural and industrial use. While no formal dispute arose,
discussions among the four countries focused on ensuring sustainable management and
equitable utilization of the aquifer. The countries entered into the Guarani Aquifer
Agreement (2010). This treaty explicitly acknowledges the principle of sustainable use and

9
Professor L. Boisson de Chazournes, Environment, Sustainable Development and International Law : Extracts from
Relevant Case Law, University of Geneva, Faculty of Law, Department of Public and International Law, (2011),
p.125
10
Convention on Biological Diversity 1992, Article 2, p.148
11
equitable utilization, establishing a framework for joint management and monitoring of the
aquifer.

By addressing both sustainable use and equitable utilization, this principle has
broadened the scope of IEL beyond just pollution control. It now considers issues such as
access to resources by developing nations, conservation of biodiversity and ecosystem
services, impact of resource extraction on indigenous communities etc. Article 10(c) of
the Convention on Bio-diversity supports and encourages local and indigenous
development practices compactible with sustainable use requirements. Appendix II (2a)
of the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) also maintains that the only means of protecting species specimen being traded
is by way of enforcing strict regulation on utilization which are incompatible with the
survival of such species. This principle has also necessitated international cooperation
among states party to these conventions and agreements leading to increased focus on
knowledge sharing with and capacity building for developing nations and establishment
of dispute resolution mechanisms for resource-related conflicts. Most of the provisions of
the conventions emphasize on the co-operation of party states in each conventions focus
area. Article 118 of the UNCLOS highlights cooperation of states in the conservation and
management of living resources where said resources are being exploited by nationals.
Sub-regional and regional negotiations shall be entered into with a view to taking
measures that establish sustainable use and equitable utilization and distribution of these
benefits.

4.1 FINDINGS

As much as the principle of sustainable use and equitable utilization has been ingenious in
re-routing and re-focusing the attention of the world on the importance of the judicious use
and conservation of these resources among states, there are also some challenges facing the
effective global implementation of this principle which will be considered below.

1. Though these convention and agreements do well in defining the term “sustainable
use” within the context in which it applies, there are still no clear-cut operational
definitions and measurable indicators for "sustainable use." Without a clear
definition, countries can exploit the ambiguity to justify unsustainable practices. As
previously mentioned above, we can see an example of the convention on biological
diversity (CBD) defining the term “sustainable use” but giving no clarity as to what
extent the utilization of a resource can be regarded as unsustainable or at what point it
 could induce irreversible and long term damages. The absence of measurable
indicators makes it challenging to monitor and enforce sustainable use as it is
difficult to assess if resource extraction stays within ecological limits without clear
benchmarks. And though most provisions set out in these conventions emphasize
sustainable development and reduction of impact of environmental degradation for
the benefit of developing states and future generations, developed nations with
greater resources still have more influence in defining "sustainable use" to suit their
interests, potentially leading to the neglect of the needs of developing countries
which creates inequalities in access to resources.
2. Also, there exists difficulty in achieving equitable utilization between developed and
developing countries. Developed nations often possess greater economic and political
power, giving them leverage in negotiations over resource access and utilization.
This places developing nations at a disadvantage forcing them to accept unfair terms.
During the resource extraction processes as well, foreign corporations tend to
prioritize profit-making over long-term sustainability and local community
development leading to environmental degradation and social unrest in host
communities. History has shown that the development of most of the first world
nations has been the biggest contributor to climate change, yet the impacts are often
felt more acutely by developing nations. Had these nations considered the long term
effects of their unsustainable practices, the world would probably not be in the state
of environmental depletion which it is in today.

5.1 RECOMMENDATIONS

Here are potential solutions and future directions to strengthen the principle and
effectively enhance its implementation by states.

1. By developing clearer guidelines and standards for "sustainable use" based

on scientific evaluation and indigenous knowledge, it provides a more
objective foundation for decision-making regarding resource utilization
which will help ensure practices stay within ecological limits, preventing
overexploitation and resource depletion. A number of these conventions
touch and emphasize on the importance of integrating indigenous
knowledge systems honed over generations of living in harmony with
nature into sustainable practices. This can lead to more holistic approaches
that consider both ecological and social factors. Principle 22 of the Rio
Declaration as well as article 8(j) of the CBD highlighted this importance
while prompting the recognition and incorporation of indigenous and local
 communities into environmental management. Hence, clearer guidelines
ensuring equitable distribution of benefits derived from resource use
incentivize more developing nations to adopt sustainable practices,
especially if they see tangible economic benefits.
2. Clearer accountability mechanisms for corporations involved in resource
extraction can deter unsustainable practices. Mechanism such as more
stringent implementation of the precautionary principle as provided under
principle 15 of the Rio Declaration and the penalties provided under
individual state EIA’s. Some states though have EIAs in place but fail to
recognize them as crucial tools for identifying potential environmental and
social impacts of resource extraction projects before they begin. This allows
for mitigation strategies to be developed, minimizing damage to ecosystems
and local communities. EIAs can help ensure projects operate within
ecological limits and promote sustainable resource use. EIAs are essential
for ensuring the principle of sustainable use and equitable utilization
translates from theory to practice.