fundamental norms, and fill in gaps in

PRINCIPLES AND positive law. Principles and concepts

CONCEPTS OF also appear in national constitutions and
laws; and they are referred to in, and
INTERNATIONAL influence, international and national
ENVIRONMENTAL jurisprudence. Today, almost all major
binding and non-legally binding
LAW international environmental instruments
contain or refer to principles or concepts
and are engines in the evolving
I. Introduction environmental law.

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
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
6. A general characteristic of present more in the nature of guidelines or
international environmental law is the policy directives which do not
utilization of non-binding international necessarily give rise to specific legal
instruments. Such texts are often easier to rights and obligations. Principles have
negotiate and amend in the light of new acquired recognition, among other
problems where scientific knowledge and means, through state practice, their
public awareness can be the major incorporation in international legal
factors pressing for international action. instruments, their incorporation in
Principles in non-binding texts can help national laws and regulations, and
develop international environmental law through judgements of courts of law and
and directly or indirectly give birth to tribunals. Some principles are
new legal rules in conventions and/or embodied or specifically expressed in
customary law. global or regionally binding
instruments, while others are
7. The legal status of international predominantly based in customary law.
environmental law principles and concepts In many cases it is difficult to
 establish the precise parameters or legal 9. Some scholars believe the
status of a particular principle. The development of a single
manner in which each principle applies to comprehensive treaty of
a particular activity or incident typically fundamental environmental norms
must be considered in relation to the may be a future solution to counteract
facts and circumstances of each case, fragmentation and provide clarity
taking into account of various factors about the legal status of various
including its sources and textual context, principles. Such an overarching
its language, the particular activity at issue, agreement may provide the legal
and the particular circumstances in which it framework to support the further
occurs, including the actors and the integration of various aspects of
geographical region, since the juridical sustainable development, reinforcing
effect of principles and concepts may the consensus on basic legal norms
change from one legal system to another. both nationally and internationally. It
could thus create a single set of
8. For the reasons outlined in the fundamental principles and concepts
preceding paragraph, this chapter does to guide states, international
not address the question of whether a organizations, NGOs and individuals.
particular principle is, in fact, binding It could consolidate and codify many
international law. In order to avoid widely accepted, but scattered,
confusion in this respect, part III, below, principles and concepts contained in
refers to principles and concepts jointly non-binding texts on environment
as “concepts” unless referring to a and sustainable development and fill
particular text, e.g. one of the Rio in gaps in existing law. It could
“Principles”. 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
 2. Inter-Generational and Intra-
Generational Equity
11. The principles and concepts discussed in 3. Responsibility for Transboundary Harm
this chapter are: 4. Transparency, Public Participation
and Access to Information and
1. Sustainable Development, Remedies
Integration and 5. Cooperation, and Common but
Interdependence Differentiated Responsibilities
6. Precaution

7. Prevention society, including those to protect the

8. “Polluter Pays Principle” environment, achieve peace, and
24 9. Access and Benefit Sharing accomplish economic development, are
regarding Natural Resources interdependent. Principles 4 and 25 thus
10.Common Heritage and Common
embody the concepts of integration and
Concern of Humankind
11.Good Governance
interdependence.

1. Sustainable 14. The concepts of integration and

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

21. Equity thus includes both “inter-

generational equity” (i.e. the right of
future generations to enjoy a fair level
of the common patrimony) and “intra-
generational equity” (i.e. the right of
all people within the current generation
to fair access to the current
generation’s entitlement to the Earth’s
natural resources).

22. The present generation has a right to

use and enjoy the resources of the
Earth but is under an obligation to take
into account the long-term impact of
its activities and to sustain the resource
base and the global environment for
the benefit of future generations of
humankind. In this context, “benefit”
 is given its broadest meaning as Supreme Court of the Republic of the
including, inter alia, economic, Philippines decided, in the Minors
environmental, social, and intrinsic Oposa case (Philippines - Oposa et. al.
gain. v. Fulgencio S. Factoran, Jr. et al. G.R.
No. 101083), that the petitioners could
23. Some national courts have referred to file a class suit, for others of their
the right of future generations in cases generation and for the succeeding
before them. For example, the generations. The Court,
considering the concept of inter- both of them have been reaffirmed in
generational responsibility, further declarations adopted by the United
stated that every generation has a Nations, including the Charter of
responsibility to the next to preserve Economic Rights and Duties of States,
that rhythm and harmony necessary the World Charter for Nature, and the
for the full enjoyment of a balanced Declaration of the 2002 World Summit
and healthful ecology. on Sustainable Development. Their
contents are included in the United
3. Responsibility for Nations Convention on the Law of the
Transboundary Harm Sea (“UNCLOS”) as well as in article 20
of the Association of South East Asian
24. Principle 21 of the Stockholm Nations (“ASEAN”) Agreement on the
Declaration recognizes the sovereign Conservation of Nature and Natural
right of each state upon its natural Resources. The 1979 Convention on
resources, emphasizing that it is limited Long- Range Transboundary Air Pollution
by the responsibility for reproduces Principle
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
 21, stating that it "expresses the
common conviction that States have"
on this matter. Principle 21 also
appears in article 3 of the 1992
Convention on Biological Diversity, to
which virtually all the states of the
world are parties, and, as restated in
the 1992 Rio Declaration, in the
preamble of the 1992 UNFCCC, the
1999 Protocol on Water and Health to
the Convention on the Protection and
Use of Transboundary Watercourses
and International Lakes, and the 2001
Stockholm Convention on Persistent
Organic Pollutants (“POPs”). Also, the
International Court of Justice (“ICJ”)
recognized in an advisory opinion
that “The existence of the general
obligation of states to ensure that
activities within their jurisdiction and
control respect the environment of
other states or of areas beyond
national control is now part of the
corpus of international law relating to
the environment.” (See Legality of the
Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Reports, pp. 241-
42, 1996).
26. Stockholm Principle 21/Rio Principle 2
contain two elements which cannot
be separated without fundamentally
changing their sense and effect: (1)
the sovereign right of states to exploit
their own natural resources, and (2)
the responsibility, or obligation, not to
cause damage to the environment of
other states or areas beyond the limits
of national jurisdiction. It is a well-
transboundary damage resulting from
activities within a state's territory or
control can be prevented or are
unlawful, though compensation may
nevertheless be called for; but the
circumstances in which those outcomes
arise are not entirely clear.
4. Transparency, Public Participation
and Access to Information
and Remedies
29. Public participation and acces to
information are recognized in Principle
10 of the Rio Declaration.
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 effective judicial and administrative
decisions are being contemplated, proceedings. For example, states should
the alleged factual bases for ensure that where transboundary harm
proposed and accomplished has been or is likely to be caused,
governmental actions, and other affected individuals and communities
aspects of governmental processes. have non-discriminatory access to
Public participation is essential to effective judicial and administrative
sustainable development and good processes.
governance in that it is a condition for
responsive, transparent and 32. Principle 10 combines public
accountable governments. It is also a participation with public access to
condition for the active engagement of information and access to remedial
equally responsive, transparent and procedures. According to chapter 23
accountable Civil Society of Agenda 21, one of the fundamental
organizations, including industrial prerequisites for the achievement of
concerns, trade unions, and Non sustainable development is broad
Governmental Organizations (“NGOs”). public participation in decision-
Public participation in the context of making. Agenda 21 (chapters 23-32,
sustainable development requires and 36) emphasises the importance
effective protection of the human right of the participation of all Major
to hold and express opinions and to Groups, and special emphasis has
seek, receive and impart ideas. It also been given in Agenda 21, the Rio
requires a right of access to appropriate, Declaration, and in legally binding
comprehensible and timely information international instruments to ensuring
held by governments and industrial the participation in decision-making of
concerns on economic and social those groups that are considered to
policies regarding the sustainable use of be politically disadvantaged, such as
natural resources and the protection indigenous peoples and women.
of the environment, without imposing Principle 10 also supports a role for
undue financial burdens upon the individuals in enforcing national
applicants and with adequate environmental laws and obligations
protection of privacy and business before national courts and tribunals.
confidentiality.
33. The 1992 United Nations Framework
31. The empowerment of people in the Convention on Climate Change, in
context of sustainable development article 4.(1)(i), obliges Parties to
also requires access 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 34. These concepts mean that
are confined to distinct contexts, international institutions, such as
such as Environmental Impact international financial institutions,
Assessment. For example, the 1992 should also implement open and
CBD requires appropriate public transparent decision- making
participation in EIA procedures in procedures that are fully available to
article 14.(1)(a); article 13 addresses public participation. Examples of this
the need for public education and include the World Bank Inspection
awareness. Panel, which provides groups
affected by World Bank projects the
opportunity to
request an independent inspection into includes a notification and consultation
alleged violations of Bank policies and requirement in article 14(1)(c).
procedures. The petitioning process
included in articles 14 and 15 of the 5. Cooperation, and Common but
1993 North American Agreement on Differentiated
Environmental Cooperation also Responsibilities
provides significant new rights for
citizens to participate in monitoring 36. Principle 7 of the Rio Declaration
domestic 1992enforcement of environmental provides:
Rio Declaration
laws. These concepts
Principlealso
7 imply that
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
andthe Earth’s ecosystem. In view ofrelied
should be appropriately the
upon for expertise,
different contributionsinformation
to and
global
other purposes.
environmental degradation, States have
common but differentiated
35. In responsibilities.
many countries, public The developed
participation
countries are
rights acknowledge the responsibility
granted through
that they
Environmental bear in
Impact the international
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
37. Principle 7 can be divided into two element is a way to take account of
parts: (1) the duty to cooperate in a differing circumstances, particularly in
spirit of global partnership; and (2) each state's contribution to the creation
common but differentiated of environmental problems and in its
responsibilities. ability to prevent, reduce and control
them. States whose societies have in
38. The duty to cooperate is well- the past imposed, or currently impose,
established in international law, as a disproportionate pressure on the
exemplified in articles 55 and global environment and which
56 of chapter IX of the Charter of command relatively high levels of
the United Nations, to which all UN technological and financial resources
member states, at present 191, bear a proportionally higher degree of
subscribe, and applies on the global, responsibility in the international
regional and bilateral levels. The goal pursuit of sustainable development.
of the Rio Declaration is, according to
the fourth paragraph of its preamble, 40. In practical terms, the concept of
the establishment of a “...new and common but differentiated
equitable global partnership...” The responsibilities is translated into the
concept of global partnership can be explicit recognition that different
seen as a more recent reformulation standards, delayed compliance
of the obligation to cooperate, and is timetables or less stringent
becoming increasingly important. commitments may be appropriate for
Principle 7 refers to states, but the different countries, to encourage
concept of global partnership may also universal participation and equity. This
be extended to non-state entities. may result in differential legal norms,
International organisations, business such as in the 1987 Montreal Protocol
entities (including in particular on Substances that deplete the Ozone
transnational business entities), NGOs Layer (See chapter 9 of this Training
and Civil Society more generally should Manual). In designing specific
cooperate in and contribute to this differentiated regimes, the special
global partnership. Polluters, needs and interests of developing
regardless of their legal form, may countries and of countries with
also have also responsibilities economies in transition, with particular
pursuant to the “Polluter–Pays regard to least developed countries and
Principle”, described in paragraph 62 those affected adversely by
and further. environmental, social and
developmental considerations, should
39. Principle 7 also speaks of common be recognized.
but differentiated responsibilities. This
41. According to the concept of common may entail, apart from consultation and
but differentiated responsibilities, negotiation, financial aid, transfer of
developed countries bear a special environmentally sound technology and
burden of responsibility in reducing and cooperation through international
eliminating unsustainable patterns of organizations.
production and consumption and in
contributing to capacity-building in 42. Article 4 of the 1992 Cimate Change
developing countries, inter alia by Convention recognizes the special
providing financial assistance and circumstances and needs of developing
access to environmentally sound countries and then structures the duties
technology. In particular, developed and obligations to be undertaken by
countries should play a leading role and states accordingly. The idea of common
assume primary responsibility in but differentiated responsibilities and
matters of relevance to sustainable respective capabilities is stated in article
development. A number of 3 as the first principle to guide the
international agreements recognize a parties in the implementation of the
duty on the part of industrialized Convention. Article 12 allows for
countries to contribute to the efforts of differences in reporting requirements.
developing countries to pursue The provisions of the Convention on
sustainable development and to assist joint implementation (article 4.(2)(a),
developing countries in protecting the (b)) and guidance provided on the issue
global environment. Such assistance by its Conference of the Parties are also
 of relevance. The 1992 Convention on responsibilities can be seen as the
Biological Diversity states in article 20 main idea behind the Fourth APC-EEC
(4) that implementation of obligations Convention of Lome and is included in
undertaken by developing countries the fourth preambular paragraph of the
will depend on the commitments of 2001 Stockholm Convention on
developed countries to provide new Persistent Organic Pollutants.
and additional financial resources and
to provide access to and transfer of 6. Precaution
technology on fair and most
favourable terms. Other parts of this 44. Precaution (also referred to as the
Convention relate to the special “precautionary principle,” the
interests and circumstances of “precautionary approach,” and the
developing countries (e.g., paragraphs “principle of the precautionary
13-17, 19 and 21 of the Preamble and approach”) is essential to protecting the
articles 16-21). environment (including human health)
and is accordingly one of the most
43. The 1994 Desertification Convention commonly encountered concepts of
contains specific obligations for international environmental law. It is also
affected country parties (article 5) and one of the most controversial, however,
recognizes additional responsibilities because of disagreements over its
for developed country Parties (article precise meaning and legal status and
6). Article 26 of the 1996 Protocol to because of concern that it may be
the Convention on the Prevention of misused for trade-protectionist purposes.
Marine Pollution by Dumping of Wastes
and other Matter of 1972 creates the 45. Probably the most widely accepted
opportunity for parties to adhere to an articulation of precaution is Principle 15
adjusted compliance time schedule for of the Rio Declaration.
specific provisions. The idea of
common but differentiated
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 adverse effects...” The next sentence,
precautionary measures to anticipate, however, repeats Principle 15 almost
prevent or minimize the cause of verbatim.
climate change and mitigate its
47. Other formulations also exist. One of article 6; and its article 5(c) states that
the most forceful is that in article 4(3) the application of the precautionary
(f) of the 1991 Bamako Convention on approach is one of the general
the Ban of the Import into Africa and principles of the Agreement. (See also
the Control of their Transboundary Annex II to the Agreement, “Guidelines
Movement and Management of for Application of Precautionary
Hazardous Wastes within Africa, which Reference Points in Conservation and
requires parties to take action if there is Management of Straddling Fish Stocks
scientific uncertainty. Another example and Highly Migratory Fish Stocks”).
can be found in the 1996 Protocol to The precautionary approach is also
the London Convention, which states in included in Annex II, article 3(3)(c), of
article 3(1): "In implementing this the Convention for the Protection of the
Protocol, Contracting parties shall apply Marine Environment of the North-East
a precautionary approach to Atlantic.
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
50. Other international agreements in 51. Concrete application of the
which the precautionary approach precautionary approach can be found
appears include: Helsinki Convention in treaties for the management of
on the Protection of the Marine living resources, especially those
Environment of the Baltic Sea, Area concerning fishing. The 1995 United
article 3(2)(1992); Amendments to the Nations Agreement for the
Protocol for the Protection of the Implementation of the Provisions of the
Mediterranean Sea against Pollution United Nations Convention on the Law
from Land-Based Sources, Preamble of the Sea of 10 December 1982,
(1996); Protocol to the 1979 relating to the Conservation and
Convention on Long- Range Management of Straddling Fish Stocks
Transboundary Air Pollution to abate and Highly Migratory Fish Stocks
Acidification, Eutrophication and declares that states shall apply the
Ground-Level Ozone, Preamble (1999); precautionary approach (article 5(c)).
the Cartagena Protocol on Biosafety, Article 6 adds that such application
Preamble (2000); Convention on the includes taking a precautionary
Conservation and Management of approach widely to conservation,
Highly Migratory Fish Stocks in the management and exploitation of
Western and Central Pacific Ocean, straddling fish stocks and highly
Preamble (2000); Convention on the migratory fish stocks, inter alia, by
Conservation and Management of improving decision-making in this
Fishery Resources in the South-East field, by taking into account
Atlantic Ocean, Preamble (2001); the uncertainties relating to the size and
Stockholm Convention on Persistent productivity of the stocks, by
Organic Pollutants, Preamble (2001); developing knowledge, by not
the European Energy Charter Treaty, exceeding reference points, by
article 19(1) (1994); Agreement on enhanced monitoring and by
the Conservation of Albatrosses and adopting, if necessary, emergency
Petrels, article II(3) (2001); the measures. Similarly, the 2000
Convention for Cooperation in the Convention on the Conservation and
Protection and Sustainable Management of Highly Migratory Fish
Development of the Marine and Stocks in the Western and Central
Coastal Environment of the Northeast Pacific Ocean provides that the
Pacific, article 5 (6)(a) (2002); and the Commission created by this instrument
ASEAN Agreement on Transboundary shall apply the precautionary approach
Haze Pollution, article 3.(3) (2002). (article 5(c)). EC Regulation 2371/2002
of December 2002 on the
Conservation and Sustainable “The law cannot function in protection of
Exploitation of Fisheries Resources the environment unless a legal principle
under the Common Fisheries Policy also is involved to meet this evidentiary
difficulty, and environmental law has
foresees that the Community “...shall
responded with what has come to be
apply the precautionary approach in
described as the precautionary principle – a
taking measures designed to protect principle which is gaining increasing
and conserve living aquatic resources, support as part of the international law of
to provide for their sustainable the environment.”
exploitation and to minimize the impact
of fishing activities on marine ICJ Order of 22 September 1995, at p.
ecosystems...” (article 2(1)). 342 (Weeramantry, J., dissenting). In
the Gabçikovo Case, the International
52. The precautionary principle has been Court of Justice did not accept
invoked before the International Court Hungary’s argument that a state of
of Justice. Judge Weeramantry in his necessity could arise from application of
opinion dissenting from the Order of the precautionary principle.
the Court of 22 September 1995
concluded that the precautionary 53. The European Court of Justice (“ECJ”) has
principle was gaining increasing adopted the precautionary approach,
support as part of the international particularly in respect to environmental
law of the environment. Judge risks that pose dangers to human health.
Weeramantry stated: 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 long-
term approach and which anticipate
possible revisions on the basis of
changes in scientific knowledge. Also
central to precaution is the reality
that environmental decision makers
seldom, if ever, have all the
information they would like to have
before making a decision.
56. The exercise of precaution with
respect to risk management can take
many forms, including most commonly
taking pollution-prevention actions or
placing the burden of proof safety on
the person or persons carrying out or
intending to carry out an activity that
may cause harm, including using or
importing a drug or other potentially
dangerous substance. Another
precautionary method is to provide
additional margins of safety, beyond
those that are directly verifiable by
existing scientific information, for
vulnerable groups such as children.
7. Prevention
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 prevention also emerges from the
example, create irreversible international responsibility not to cause
situations. Even when harm is significant damage to the environment
remediable, the costs of rehabilitation extra-
are often prohibitive. An obligation of
territorially, but the preventive Accidents, and the 1993 North
approach seeks to avoid harm American Agreement on Environmental
irrespective of whether or not there is Cooperation. Principle 17 of the 1992
transboundary impact or international Rio Declaration, Agenda 21, principle
responsibility. 8(h) of the 1992 Non-Legally Binding
Authorative Statement of Principles for
58. The concept of prevention is complex, a Global Consensus on the
owing to the number and diversity of Management, Conservation and
the legal instruments in which it Sustainable Development of all Types
occurs. It can perhaps better be of Forests (“Forests Principles, and
considered an overarching aim that article 14(1)(a) and (b) of the 1992 CBD
gives rise to a multitude of legal treat both the national and
mechanisms, including prior international aspects of the issue. The
assessment of environmental harm, concept is also contained in article 206
licensing or authorization that set out of UNCLOS.
the conditions for operation and the
consequences for violation of the 60. The duty of prevention extends to
conditions, as well as the adoption of combating the introduction of
strategies and policies. Emission limits exogenous species into an ecosystem.
and other product or process Article V(4) of the 1976 Convention on
standards, the use of best available Conservation of Nature in the South
techniques and similar techniques can Pacific
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
 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 Co- operation and
Development (“OECD”) in the 1970s in
an effort to ensure that companies
would pay the full costs of complying
with pollution- control laws and were
not subsidised by the state. The PPP
was adopted by the OECD as an
economic principle and as the most
efficient way of allocating costs of
pollution-prevention-and- control
measures introduced by public
authorities in the member countries. It
was intended to encourage rational use
of scarce resources and to avoid
distortions in international trade and
investment. It was meant to apply
within a state, not between states. As a
goal of domestic policy, it has been
realized only partially in practice. See
also chapter 5 of this Manual.
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.
 many countries in the developing
69. Without elaboration, it should be world, and in their national supreme
noted that the PPP has also been courts such as in South Asia, Africa and
increasingly accepted and applied at elsewhere in the world.
national level including in statutes in
9. Access and Benefit Sharing communities have the right to
regarding Natural participate in, or otherwise should be
Resources involved in, the management,
development and preservation of the
70. Many indigenous and other local resources on which they rely. Principle
communities rely on natural resources 22 of the Rio Declaration provides:
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 nation’s constitutions,
legislation or customary law
recognizes property rights which
indigenous 1992 Rioor Declaration
other local
communities Principle
may exercise22 over their
land and waterways or which enable
“Indigenous
indigenous orpeople
otherand theircommunities
local communities
to and other
take local
part communities
in have a vital
decision-making
role in environmental management and
processes.
development because of their knowledge
72. A and traditional
related issue ispractices. States
the extent should
to which
recognzse
indigenous and duly
and support their
other identity,
local
culture and interests and enable their
 Principle 22 finds its further 1992 Convention on
elaboration in chapter 26 of Agenda Biological
21. Diversity Article
8(j)
73. The 1993 Nuuk Declaration on
Contracting Parties shall:
Environment and Development in the "subject to its national legislation,
Arctic States, in Principle 7, respect, preserve and maintain
recognizes the vital role of knowledge, innovations and practices of
indigenous peoples in managing indigenous and local communities
natural resources. embodying traditional lifestyles...and
promote their wider application with
1993 Nuuk Declaration on the approval and involvement of the
Environment and holders of such knowledge, innovations
Development in the Arctic 75. As a practical matter, the knowledge
States of indigenous and other local
Principle 7
communities, their participation in
“We recognize the special role of decision-making and their
indigenous peoples in environmental involvement in management is often
management and development in the crucial for the protection of local
Arctic, and of the significance of their ecosystems, for sound natural
knowledge and traditional practices,
resource management, and for the
and will promote their effective
broader effort to achieve sustainable
development taking into account their
74. With respect to biological diversity, the traditional knowledge and cultural
vital role of indigenous and other environment. Their involvement in
local communities is expressly EIA procedures is an example of
recognized in preambular paragraph their valuable participation in
12 of the 1992 Convention on decision-making for sustainable
Biological Diversity, and is further development.
detailed in its articles 8(j), 10(c), and
17.2. Article 8(j) states that: 76. As a legal matter, the question has
arisen whether indigenous and local
communities have, in addition to the
procedural and substantive rights
identified above, the right to Prior
Informed Consent (“PIC”) (sometimes
referred to as “free, prior and informed
consent” or “FPIC”) with respect to the
use of their knowledge and the
genetic resources on which they rely. conventions relating to indigenous
In the words of article 8(j) (quoted people, starting in 1936 with the,
above), what does “with their approval” now outdated, Recruiting of Indigenous
entail? Some believe that there is an Workers Convention, to the 1989
absolute right to such prior informed Indigenous and Tribal Peoples
consent; some believe that such a Convention; also the 1992 Forest
right exists but that it is subject to the Principles 2(d), 5(a) and 12(d) refer to
proper exercise of eminent domain; the recognition of traditional or
and others believe that no such right indigenous rights.
exists unless embodied in domestic
law. Similarly, questions exist 77. At the time of this writing (2005), these
regarding the terms on which such questions are being discussed in
knowledge and genetic resources may several international fora, including the
be used or, in the words of article Conference of the Parties to the 1992
8(j), what is “equitable sharing”? The Convention on Biological Diversity, the
analysis of these questions may differ World Intellectual Property Organization,
depending on whether the local the World Trade Organization Agreement
community is indigenous or not, to on Trade-Related Aspects of Intellectual
the extent indigenous people have Property Rights, the World Bank, the
different or additional rights under International Finance Corporation, and
international or domestic law. For various regional development banks
example, the International Labour and export credit agencies. Some
Organization has adopted various institutions already have processes in
 place that are similar to prior informed
consent.
10. Common Heritage and Common
Concern of Humankind
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.

78. The concepts of “common heritage of 80. The resources of outer space and
humankind” and “common concern of celestial bodies and of the sea-bed,
humankind” reflect the growing ocean floor and subsoil thereof beyond
awareness of the interdependence of the limits of national jurisdiction are
the biosphere and the environmental generally recognized as the common
problems besetting it, as well as of the heritage of humankind. The
global nature of many environmental international community’s interest in
problems and the critical importance these is probably stronger, generally
of those problems. It is thus speaking, than it is with respect to
increasingly acknowledged that the common concern, though the contours
international community has an interest of that interest are not clearly defined.
in these issues.
11. Good Governance
79. The protection, preservation and
enhancement of the natural 81. The concept of good governance is
environment, particularly the proper relatively recent and reflects a
management of the climate system, growing awareness of the importance
biological diversity and fauna and to sustainable development of
flora of the Earth, are generally transparent, accountable, honest
recognized as the common concern of governance, as well as a growing
humankind. Basic assumptions implicit awareness of the corrosive effect of
in the common concern concept include corruption on public morale,
that states and economic efficiency, political
stability and sustainable
development in general. The concept
implies, among others, that states
and international organizations
should: (a) adopt democratic and
transparent decision-making
procedures and financial
accountability; (b) take effective
measures to combat official or other
corruption; (c) respect due process in
their procedures and observe the rule
of law more generally; (d) protect
human rights; and (e) conduct public
procurement in a transparent, non-
corrupt manner.

82. Good governance implies not only that

Civil Society has a right to good
governance by states and international
organizations, but also that non- state
actors, including business enterprises
and NGOs, should be subject to
internal democratic governance and
effective accountability. In addition,
good governance calls for corporate
social responsibility and socially
responsible investments as conditions
for the existence of a sustainable
global market that will achieve an
equitable distribution of wealth among
and within communities.
83. Good governance requires full progressive development, codification
respect for the principles of the and implementation of international
1992 Rio Declaration on Environment and domestic law relating to
and Development, including the full sustainable development. Also, Goal 8
participation of women in all levels of of the Millennium Development Goals
decision- making. Achieving good on developing a global partnership for
governance is essential to the development,
has as one of its targets (target 12) to
“Develop further an open, rule-
based, predictable, non-
discriminatory trading and financial
system. Includes a commitment to
good governance, development, and
poverty reduction - both nationally
and internationally.”

37