UNITED NATIONS ENVIRONMENT PROGRAMME

(UNEP)
Environmental, Social and Economic Sustainability
Framework
DECLARATION OF PRINCIPLES
1. Precautionary Approach: UNEP applies a science-based precautionary
approach to its project design and implementation. It also recognizes that
the term environmental degradation, as stated in 1992 in the Rio
Declaration on Environment and Development, is interpreted to
encompass both negative impacts on the natural environment, and
adverse social and economic impacts resulting from those impacts.
UNEP project approach should be science-based and must anticipate and
address harm before it happens. Where there are threats of serious or
irreversible damage, lack of full scientific certainty should not be used as
a reason for avoiding cost-effective measures to prevent environmental
degradation.
2. Human Rights-Based Approach (HRBA): UNEPs ESES Framework is
founded on a human rights-based approach to project management,
including the rights of future generations. This means that stakeholder
engagements and public participation from the project preparation to
closure should be based on the following procedural human rights
principles:
a) Equality and Non-discrimination: All individuals are equal as human
being by virtue of the inherent dignity of each human person. All
human beings are entitled to their human rights without discrimination
of any kind, such as race, colour, sex, age, language, religion, political
or other opinion, national or social origin, disability, property, birth or
other status.
b) Participation and Inclusion: Every person and all peoples are entitled to
active, free and meaningful participation in, contribution to, and
enjoyment of civil, economic, social, cultural and political development
in which human rights and fundamental freedoms can be realized.

3. Accountability and Rule of Law: This requires accessible, effective and

independent mechanisms and procedures of redress based on appropriate
judicial and administrative mechanisms.

SAFEGUARD STANDARD 1: BIODIVERSITY CONSERVATION, NATURAL

HABITATS, AND SUSTAINABLE MANAGEMENT OF LIVING RESOURCES
Purpose To ensure that projects undertaken directly by UNEP, or supported
by UNEP through partnerships, do not adversely impact biodiversity,
habitats, or ecosystem services and avoid or minimize any adverse impact
on priority ecosystem services10 of relevance to affected communities
Safeguard Requirements
1. UNEP will not support directly or indirectly any activity that will
significantly convert or degrade critical natural habitats and will avoid
significant conversion or degradation of habitats that are:

Legally protected
Officially proposed for protection
Identified by authoritative sources for their high conservation value,
or Recognized as protected by traditional local communities, where
national legislation so allows.

2. Before engaging in a project that could result in the conversion or

degradation of non- critical natural habitats, UNEP will require: an analysis
that shows there is no feasible alternative; an analysis that shows that the
benefits of the project exceed the environmental costs; and compensation
for the loss of habitat, usually in the form of an offset.
3. When planning activities in critical habitats, such as restoration or
improved management, UNEP will ensure that the operation does not
have potential serious adverse impacts on the biodiversity and ecosystem
services for which the critical habitat was designated; the operation will
not lead to a net reduction in the global, national or regional population of
any critically endangered or endangered species12 and will ensure that
they do not result in a net loss of biodiversity and ecosystem services by
one or more of the following:

Avoidance of impact through identification and protection of setasides,

Minimization of habitat fragmentation, such as with biological
corridors,

Preference given to sitting physical infrastructure investments on

lands where natural habitats have already been converted to other
land uses,
Restoring habitats during operations and/or after operations and
providing biodiversity and ecosystem services offsets.

4. UNEP activities should be legally permitted and consistent with any

officially recognized management plans for the area.
5. UNEP-supported activities will seek to avoid adverse impacts on soils,
their organic content, productivity, structure and water-retention capacity,
or to contribute to reversing land degradation.
6. UNEP will implement measures to avoid the introduction or utilization of
invasive alien species, whether accidental or intentional; and will support
activities to mitigate and control their further spread.
7. UNEP will apply the precautionary approach in assessing and managing
the impacts of all activities with potential adverse effects on biodiversity,
natural habitats or ecosystem services.
8. In projects that could affect biodiversity, natural habitats, or ecosystem
services or that involve the preparation of protected areas or ecosystem
management plans, UNEP and/or its implementing/executing partners will
consult with appropriate experts, potentially affected communities, local
government, local and national NGOs, or other experts and stakeholders.
9. With respect to impacts on priority ecosystem services of relevance to
affected communities and where a UNEP project has direct management
control or significant influence over such ecosystem services, adverse
impacts should be avoided. If these impacts are unavoidable, UNEP
project will minimize them and implement mitigation measures that aim
to maintain the value and functionality of priority services.
SAFEGUARD STANDARD 2: RESOURCE EFFICIENCY, POLLUTION
PREVENTION AND MANAGEMENT OF CHEMICALS AND WASTES
Purpose To promote more sustainable uses of resources, including energy
and water. To reduce project-related greenhouse gas (GHG) emissions. To
avoid or minimize adverse impacts on human health and the environment

originating from project activities through the use or management of

hazardous chemicals and waste materials, including pesticides.
Safeguard Requirements
1. UNEP projects will explore technically and financially feasible approaches
for the efficient use of energy, water, and other resources and materials in
line with the concept of cleaner production13 and for using raw materials,
energy, and water sustainably.
2. UNEP projects will consider alternatives and implement technically and
financially feasible options to reduce project-related GHG emissions,
including alternative locations, the use of renewable or low-carbon energy
sources, sustainable agriculture, forestry and livestock management
practices.
3. When a UNEP project includes a significant consumption of water, UNEP
will ensure that it does not have significantly adverse impacts. The project
should consider alternative water supplies or water consumption offsets
to reduce the total demand for water resources within the available
supply.
4. UNEP projects will promote the use of demand driven, ecologically based
biological or environmental pest management practices and the reduction
of synthetic chemical pesticides in accordance with the Basel, the
Rotterdam and the Stockholm Conventions. Procurement of chemical
pesticides will only be supported when it is a component of integrated
pest management (IPM) or integrated vector management (IVM)
approaches. UNEP will not allow the procurement or use in its projects of
pesticides and other chemicals specified as persistent organic pollutants
identified under the Stockholm convention.
5. When chemical pesticides are included in IPM or IVM, UNEP and
implementing/executing partners will select compounds that are low in
human toxicity, known to be effective against the target organisms and to
have minimal effects on non-target organisms. UNEP projects will not
utilize pesticides that fall into WHO Classes IA and IB, or formulations of
products in Class II unless there are restrictions that deny use or access to
lay personnel and others without training or proper equipment.

6. Pesticides will be handled, stored, applied and disposed of in accordance

with the FAO International Code of Conduct on Distribution and Use of
Pesticides.
7. UNEP will avoid or minimize the potential for community exposure to
hazardous materials and substances that maybe released by a project.
Where there is a potential for the public to be exposed to hazards, UNEP
projects will exercise special care to avoid or minimize their exposure by
modifying, substituting, or eliminating the condition or material causing
the potential hazards.

UNITED NATIONS ENVIRONMENT PROGRAMME

INTERNATIONAL ENVIRONMENTAL LAW
Emerging Principles and Concepts
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.

Sustainable Development, Integration and Interdependence

Inter-Generational and Intra-Generational Equity
Responsibility for Transboundary Harm
Transparency, Public Participation and Access to Information
and Remedies
Cooperation, and Common but Differentiated Responsibilities
Precaution
Prevention
Polluter Pays Principle
Access and Benefit Sharing regarding Natural Resources
Common Heritage and Common Concern of Humankind
Good Governance

A. Sustainable Development, Integration and Interdependence

1. The international community recognized sustainable development as
the overarching paradigm for improving quality of life in 1992, at
UNCED. Although sustainable development is susceptible to somewhat
different definitions, the most commonly accepted and cited definition
is that of the Brundtland Commission on Environment and
Development, which stated in its 1987 Report, Our Common Future,
that sustainable development is development that meets the needs of
the present without compromising the ability of future generations to
meet their own needs. The parameters of sustainable development
are clarified in Agenda 21 and the Rio Declaration, both adopted at
UNCED, and in subsequent international regional and national
instruments.
2. Principle 4 of the Rio Declaration provides: In order to achieve
sustainable development, environmental protection shall constitute an
integral part of the development process and cannot be considered in
isolation from it. Principle 25 states that Peace, development and
environmental protection are interdependent and indivisible.
Principles 4 and 25 make clear that policies and activities in various
spheres, including environmental protection, must be integrated in
order to achieve sustainable development. They also make clear that
the efforts to improve society, including those to protect the

environment, achieve peace, and accomplish economic development,

are interdependent. Principles 4 and 25 thus embody the concepts of
integration and interdependence.
3. The concepts of integration and interdependence are stated even more
clearly in paragraph 6 of the 1995 Copenhagen Declaration on Social
Development, which introduction states that economic development,
social development and environmental protection are interdependent
and mutually reinforcing components of sustainable development,
which is the framework for our efforts to achieve a higher quality of life
for all people.
Paragraph 5 of the 2002 Johannesburg Declaration on Sustainable
Development confirms this, by stating that we assume a collective
responsibility to advance and strengthen the interdependent and
mutually reinforcing pillars of sustainable development (economic
development, social development and environmental protection) at the
local, national, regional and global levels. Integration was one of the
main themes discussed at the 2002 Johannesburg World Summit on
Sustainable Development, with particular emphasis on eradicating
poverty. One of the commitments of Millennium Development Goal
number 7 (Ensure environmental sustainability), is to Integrate the
principles of sustainable development into country policies and
programmes
Paragraph 30 of the Millennium Declaration speaks of the need for
greater policy coherence and increased cooperation among multilateral
institutions, such as the United Nations, the World Bank, and the World
Trade Organization. The definition of sustainable development from
the Brundtland Commissions report, quoted above, indicates the
interdependence of generations, as well. On the basis of these and
other international instruments, it is clear that integration and
interdependence are fundamental to sustainable development.
4. The concepts of integration and interdependence in international
environmental law are wholly consistent with the nature of the
biosphere, i.e. the concentric layers of air, water and land on which life
on earth depends. Scientists increasingly understand the fundamental
interdependence of the various elements of the biosphere, how
changes in one aspect can affect others, and the essential roles that
nature plays with respect to human activities and existence (e.g.,
purifying water, pollinating plants, providing food, providing recreation
opportunities, and controlling erosion and floods). In this respect,
international environmental law mirrors the most fundamental
infrastructure of human society (i.e., the environment).

5. The concept of integration demonstrates a commitment to moving

environmental considerations and objectives to the core of
international relations. For example, environmental considerations are
increasingly a feature of international economic policy and law: the
Preamble to the 1994 World Trade Organization Agreement mentions
both sustainable development and environmental protection, and there
are numerous regional and global treaties supporting an approach that
integrates environment and economic development, such as the 1992
Convention on Biological Diversity (CBD), the 1994 United Nations
Convention to combat Desertification in Countries Experiencing Serious
Drought and/or Desertification, particularly in Africa and the 1997
Kyoto Protocol on Climate Change.
6. At the national level, the concept of integration of environmental
concerns with all other policy areas is usually formulated as a
procedural rule to be applied by legislative and administrative bodies.
It is also a fundamental postulate of most of the national strategies for
sustainable development. The future may well witness increased
attention to sustainable development law, in which the specific laws
regarding all spheres of activity appropriately integrate environmental,
economic and social considerations.
7. Environmental Impact Assessment (EIA) has become one of the most
effective and practical tools to support the implementation of
sustainable development and its integrative aspects. The great
majority of countries in the world have adopted informal guidelines or
mandatory regulations, applicable not only to public projects but often
also as a direct obligation of citizens. In addition, in many countries
informal procedures of impact assessment for governmental activities
have been developed. EIA is also widely accepted as a mechanism for
public participation in planning processes and decision-making and a
tool to provide information and data to the public regarding projects
and other activities.
8. Also necessary are approaches that take into account long-term
strategies and that include the use of environmental and social impact
assessment, risk analysis, cost-benefit analysis and natural resources
accounting. Some have proposed so-called sustainable development
impact assessments, which take into account environmental social and
economic aspects. The integration of environmental, social and
economic policies also requires transparency and broad public
participation in governmental decision- making, as discussed in part c
below.
B) Inter-Generational and Intra-Generational Equity

1. Equity is central to the attainment of sustainable development. This is

evident from many international instruments. For example, the 1992
United Nations Framework Convention on Climate Change (UNFCC)
refers in article 3.(1) to intergenerational equity, as do the last
preambular paragraph of the 1992 CBD, the 1992 United Nations
Economic Commission for Europe Convention on the Protection and
Use of
2. Transboundary Watercourses and International Lakes, the 1994
Desertification Convention and the 2001 Stockholm Convention on
Persistent Organic Pollutants (POPs), among others. As noted above,
the Brundtland Commissions Report defined sustainable development
as development that meets the needs of the present without
compromising the ability of future generations to meet their own
needs; and it goes on to identify two key concepts of sustainable
development. The first of which is the concept of needs, in particular
the essential needs of the worlds poor, to which overriding priority
should be given. Similarly, Principle 3 of the 1992 Rio Declaration
states that The right to development must be fulfilled so as to
equitably meet developmental and environmental needs of present
and future generations; and Rio Principle 5 provides that All States
and all people shall cooperate in the essential task of eradicating
poverty as an indispensable requirement for sustainable development,
in order to decrease the disparities in standards of living and better
meet the needs of the majority of the people of the world. Paragraph
6 of the Copenhagen Declaration, the first sentence of which is
reproduced above, refers in subsequent sentences to Equitable social
development and social justice. The concept of equity is also
embodied in the United Nations Millennium Goals (e.g. the Eradication
of Poverty) and Millennium Declaration (e.g. paragraphs 6, 11 and 21).
3. 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 generations
entitlement to the Earths natural resources).
4. The present generation has a right to use and enjoy the resources of
the Earth but is under an obligation to take into account the long-term
impact of its activities and to sustain the resource base and the global
environment for the benefit of future generations of humankind. In this
context, benefit is given its broadest meaning as including, inter alia,
economic, environmental, social, and intrinsic gain.
5. Some national courts have referred to the right of future generations in
cases before them. For example, the Supreme Court of the Republic of

the Philippines decided, in the Minors Oposa case (Philippines - Oposa

et. al. v. Fulgencio S. Factoran, Jr. et al. G.R. No. 101083), that the
petitioners could file a class suit, for others of their generation and for
the succeeding generations. The Court,
6. Considering the concept of inter-generational responsibility, further
stated that every generation has a responsibility to the next to
preserve that rhythm and harmony necessary for the full enjoyment of
a balanced and healthful ecology.
C) Responsibility for Transboundary Harm
1. Principle 21 of the Stockholm Declaration recognizes the sovereign
right of each state upon its natural resources, emphasizing that it is
limited by the responsibility for transboundary harm.
1972 Stockholm Declaration
Principle 21
States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their
own environmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.

2. 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 States or of areas beyond the limits of national
jurisdiction.

3. 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 both of them have been
reaffirmed in declarations adopted by the United Nations, including the
Charter of Economic Rights and Duties of States, the World Charter for
Nature, and the Declaration of the 2002 World Summit on Sustainable
Development. Their contents are included in the United Nations
Convention on the Law of the Sea (UNCLOS) as well as in article 20 of

the Association of South East Asian Nations (ASEAN) Agreement on

the Conservation of Nature and Natural Resources. The 1979
Convention on Long- Range Transboundary Air Pollution reproduces
Principle
4. 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).
5. 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-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 neighboring environments.
6. Stockholm Principle 21/Rio Principle 2 affirms 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.

7. The exact scope and implications of Stockholm Principle 21/Rio

Principle 2 are not clearly determined. It seems clear that not all
instances of 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.
D) Transparency, Public Participation and Access to Information and
Remedies
1. Public participation and access to information are recognized in
Principle 10 of the Rio Declaration.

1992 Rio Declaration

Principle 10
Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have
appropriate access to information concerning the environment that is held by
public authorities, including information on hazardous materials and activities in
their communities, and the opportunity to participate in decision-making
processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to judicial
and administrative proceedings, including redress and remedy, shall be

2. Transparency and access to information are essential to public

participation and sustainable development, for example, in order to
allow the public to know what the decision making processes are, what
decisions are being contemplated, the alleged factual bases for
proposed and accomplished governmental actions, and other aspects
of governmental processes. Public participation is essential to
sustainable development and good governance in that it is a condition
for responsive, transparent and accountable governments. It is also a
condition for the active engagement of equally responsive, transparent
and accountable Civil Society organizations, including industrial
concerns, trade unions, and Non Governmental Organizations
(NGOs). Public participation in the context of sustainable
development requires effective protection of the human right to hold
and express opinions and to seek, receive and impart ideas. It also
requires a right of access to appropriate, comprehensible and timely
information held by governments and industrial concerns on economic
and social policies regarding the sustainable use of natural resources
and the protection of the environment, without imposing undue
financial burdens upon the applicants and with adequate protection of
privacy and business confidentiality.

3. The empowerment of people in the context of sustainable development

also requires access to effective judicial and administrative
proceedings. For example, states should ensure that where
transboundary harm has been or is likely to be caused, affected
individuals and communities have non-discriminatory access to
effective judicial and administrative processes.
4. The 1992 United Nations Framework Convention on Climate Change, in
article 4.(1)(i), obliges Parties to promote public awareness and
participation in the process, including that of NGOs, though it does not
create a public right of access to information. The 1994 Desertification
Convention recognizes, in article 3(a)(c), the need to associate Civil
Society with the action of the State. The 1993 North American
Agreement on Environmental Cooperation requires parties to publish
their environmental laws, regulations, procedures and administrative
rulings (article 4), to ensure that interested persons have access to
judicial, quasi- judicial or administrative proceedings to force the
government to enforce environmental law (article 6), and to ensure
that their judicial, quasi-judicial and administrative proceedings are
fair, open and equitable (article 7). More commonly, international legal
instruments addressing access to information and public participation
are confined to distinct contexts, such as Environmental Impact
Assessment. For example, the 1992 CBD requires appropriate public
participation in EIA procedures in article 14.(1)(a); article 13 addresses
the need for public education and awareness.
5. These concepts mean that international institutions, such as
international financial institutions, should also implement open and
transparent decision- making procedures that are fully available to
public participation. Examples of this include the World Bank Inspection
Panel, which provides groups affected by World Bank projects the
opportunity to request an independent inspection into alleged
violations of Bank policies and procedures. The petitioning process
included in articles 14 and 15 of the 1993 North American Agreement
on Environmental Cooperation also provides significant new rights for
citizens to participate in monitoring domestic enforcement of
environmental laws. These concepts also imply that NGOs should be
provided at least observer status in international institutions and with
respect to treaties, and should be appropriately relied upon for
expertise, information and other purposes.
6. In many countries, public participation rights are granted through
Environmental Impact Assessment procedures with broad public
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.
E) Cooperation, and Common but Differentiated Responsibilities
1. Principle 7 of the Rio Declaration provides:
1992 Rio Declaration
Principle 7
States shall cooperate in a spirit of global partnership to conserve, protect and restore
the health and integrity of the Earths ecosystem. In view of the different contributions
to global environmental degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the responsibility that they bear in
the international pursuit of sustainable development in view of the pressures their
societies place on the global environment and of the technologies and financial resources

2. Principle 7 can be divided into two parts: (1) the duty to cooperate in a
spirit of global partnership; and (2) common but differentiated
responsibilities.
3. The duty to cooperate is well-established in international law, as
exemplified in articles 55 and 56 of chapter IX of the Charter of the
United Nations, to which all UN member states, at present 191,
subscribe, and applies on the global, regional and bilateral levels. The
goal of the Rio Declaration is, according to the fourth paragraph of its
preamble, the establishment of a ...new and equitable global
partnership... The concept of global partnership can be seen as a
more recent reformulation of the obligation to cooperate, and is
becoming increasingly important. Principle 7 refers to states, but the
concept of global partnership may also be extended to non-state
entities. International organizations, business entities (including in
particular transnational business entities), NGOs and Civil Society more
generally should cooperate in and contribute to this global partnership.
Polluters, regardless of their legal form, may also have also
responsibilities pursuant to the PolluterPays Principle, described in
paragraph 62 and further.
4. Principle 7 also speaks of common but differentiated responsibilities.
This element is a way to take account of differing circumstances,
particularly in each state's contribution to the creation of
environmental problems and in its ability to prevent, reduce and
control them. States whose societies have in the past imposed, or
currently impose, a disproportionate pressure on the global
environment and which command relatively high levels of

technological and financial resources bear a proportionally higher

degree of responsibility in the international pursuit of sustainable
development.
5. In practical terms, the concept of common but differentiated
responsibilities is translated into the explicit recognition that different
standards, delayed compliance timetables or less stringent
commitments may be appropriate for different countries, to encourage
universal participation and equity. This may result in differential legal
norms, such as in the 1987 Montreal Protocol on Substances that
deplete the Ozone Layer (See chapter 9 of this Training Manual). In
designing specific differentiated regimes, the special needs and
interests of developing countries and of countries with economies in
transition, with particular regard to least developed countries and
those affected adversely by environmental, social and developmental
considerations, should be recognized.
6. According to the concept of common but differentiated responsibilities,
developed countries bear a special burden of responsibility in reducing
and eliminating unsustainable patterns of production and consumption
and in contributing to capacity-building in developing countries, inter
alia by providing financial assistance and access to environmentally
sound technology. In particular, developed countries should play a
leading role and assume primary responsibility in matters of relevance
to sustainable development. A number of international agreements
recognize a duty on the part of industrialized countries to contribute to
the efforts of developing countries to pursue sustainable development
and to assist developing countries in protecting the global
environment. Such assistance may entail, apart from consultation and
negotiation, financial aid, transfer of environmentally sound technology
and cooperation through international organizations.
7. Article 4 of the 1992 Climate Change Convention recognizes the
special circumstances and needs of developing countries and then
structures the duties and obligations to be undertaken by states
accordingly. The idea of common but differentiated responsibilities and
respective capabilities is stated in article 3 as the first principle to
guide the parties in the implementation of the Convention. Article 12
allows for differences in reporting requirements. The provisions of the
Convention on joint implementation (article 4.(2)(a), (b)) and guidance
provided on the issue by its Conference of the Parties are also of
relevance. The 1992 Convention on Biological Diversity states in article
20 (4) that implementation of obligations undertaken by developing
countries will depend on the commitments of developed countries to
provide new and additional financial resources and to provide access to
and transfer of technology on fair and most favourable terms. Other

parts of this Convention relate to the special interests and

circumstances of developing countries (e.g., paragraphs 13-17, 19 and
21 of the Preamble and articles 16-21).
8. The 1994 Desertification Convention contains specific obligations for
affected country parties (article 5) and recognizes additional
responsibilities for developed country Parties (article 6). Article 26 of
the 1996 Protocol to the Convention on the Prevention of Marine
Pollution by Dumping of Wastes and other Matter of 1972 creates the
opportunity for parties to adhere to an adjusted compliance time
schedule for specific provisions. The idea of common but differentiated
responsibilities can be seen as the main idea behind the Fourth APCEEC Convention of Lome and is included in the fourth preambular
paragraph of the 2001 Stockholm Convention on Persistent Organic
Pollutants.
F) Precaution
1. Precaution (also referred to as the precautionary principle, the
precautionary approach, and the principle of the precautionary
approach) is essential to protecting the environment (including human
health) and is accordingly one of the most commonly encountered
concepts of international environmental law. It is also one of the most
controversial, however, because of disagreements over its precise
meaning and legal status and because of concern that it may be
misused for trade-protectionist purposes.
2. Probably the most widely accepted articulation of precaution is
Principle 15 of the Rio Declaration.
1992 Rio Declaration
Principle 15
In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation.

3. 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 actionoriented approach than Principle 15, stating: The parties should take
precautionary measures to anticipate, prevent or minimize the cause
of climate change and mitigate its adverse effects... The next
sentence, however, repeats Principle 15 almost verbatim.
4. Other formulations also exist. One of the most forceful is that in article
4(3)(f) of the 1991 Bamako Convention on the Ban of the Import into
Africa and the Control of their Transboundary Movement and
Management of Hazardous Wastes within Africa, which requires parties
to take action if there is scientific uncertainty. Another example can be
found in the 1996 Protocol to the London Convention, which states in
article 3(1): "In implementing this Protocol, Contracting parties shall
apply a precautionary approach to environmental protection ... when
there is reason to believe that wastes or other matter introduced in the
marine environment are likely to cause harm even when there is no
conclusive evidence to prove a causal relation between inputs and
their effects". Its second preambular paragraph, emphasizes the
achievements, within the framework of the London Convention,
especially the evolution towards approaches based on precaution and
prevention.
5. 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.
6. The 1995 Agreement on Fish Stocks adopts the precautionary approach
in article 6; and its article 5(c) states that the application of the
precautionary approach is one of the general principles of the
Agreement. (See also Annex II to the Agreement, Guidelines for
Application of Precautionary Reference Points in Conservation and

Management of Straddling Fish Stocks and Highly Migratory Fish

Stocks). The precautionary approach is also included in Annex II,
article 3(3)(c), of the Convention for the Protection of the Marine
Environment of the North-East Atlantic.
7. Other international agreements in which the precautionary approach
appears include: Helsinki Convention on the Protection of the Marine
Environment of the Baltic Sea, Area article 3(2)(1992); Amendments to
the Protocol for the Protection of the Mediterranean Sea against
Pollution from Land-Based Sources, Preamble (1996); Protocol to the
1979 Convention on Long- Range Transboundary Air Pollution to abate
Acidification, Eutrophication and Ground-Level Ozone, Preamble
(1999); the Cartagena Protocol on Biosafety, Preamble (2000);
Convention on the Conservation and Management of Highly Migratory
Fish Stocks in the Western and Central Pacific Ocean, Preamble (2000);
Convention on the Conservation and Management of Fishery Resources
in the South-East Atlantic Ocean, Preamble (2001); the Stockholm
Convention on Persistent Organic Pollutants, Preamble (2001); the
European Energy Charter Treaty, article 19(1) (1994); Agreement on
the Conservation of Albatrosses and Petrels, article II(3) (2001); the
Convention for Cooperation in the Protection and Sustainable
Development of the Marine and Coastal Environment of the Northeast
Pacific, article 5 (6)(a) (2002); and the ASEAN Agreement on
Transboundary Haze Pollution, article 3.(3) (2002).
8. Concrete application of the precautionary approach can be found in
treaties for the management of living resources, especially those
concerning fishing. The 1995 United Nations Agreement for the
Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982, relating to the Conservation
and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks declares that states shall apply the precautionary approach
(article 5(c)). Article 6 adds that such application includes taking a
precautionary approach widely to conservation, management and
exploitation of straddling fish stocks and highly migratory fish stocks,
inter alia, by improving decision-making in this field, by taking into
account uncertainties relating to the size and productivity of the
stocks, by developing knowledge, by not exceeding reference points,
by enhanced monitoring and by adopting, if necessary, emergency
measures. Similarly, the 2000 Convention on the Conservation and
Management of Highly Migratory Fish Stocks in the Western and
Central Pacific Ocean provides that the Commission created by this
instrument shall apply the precautionary approach (article 5(c)). EC
Regulation 2371/2002 of December 2002 on the Conservation and
Sustainable Exploitation of Fisheries Resources under the Common
Fisheries Policy also foresees that the Community ...shall apply the

precautionary approach in taking measures designed to protect and

conserve living aquatic resources, to provide for their sustainable
exploitation and to minimize the impact of fishing activities on marine
ecosystems.
9. The precautionary principle has been invoked before the International
Court of Justice. Judge Weeramantry in his opinion dissenting from the
Order of the Court of 22 September 1995 concluded that the
precautionary principle was gaining increasing support as part of the
international law of the environment. Judge Weeramantry stated:
The law cannot function in protection of the environment unless a
legal principle is involved to meet this evidentiary difficulty, and
environmental law has responded with what has come to be described
as the precautionary principle a principle which is gaining increasing
support as part of the international law of the environment.
ICJ Order of 22 September 1995, at p. 342 (Weeramantry, J.,
dissenting). In the Gabikovo Case, the International Court of Justice
did not accept Hungarys argument that a state of necessity could
arise from application of the precautionary principle.
10.
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.
11.
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.
G) Prevention
1. Experience and scientific expertise demonstrate that prevention of
environmental harm should be the Golden Rule for the environment,
for both ecological and economic reasons. It is frequently impossible to
remedy environmental injury: the extinction of a species of fauna or
flora, erosion, loss of human life and the dumping of persistent

pollutants into the sea, for example, create irreversible situations. Even
when harm is remediable, the costs of rehabilitation are often
prohibitive. An obligation of prevention also emerges from the
international responsibility not to cause significant damage to the
environment extra-territorially, but the preventive approach seeks to
avoid harm irrespective of whether or not there is transboundary
impact or international responsibility.
2. The concept of prevention is complex, owing to the number and
diversity of the legal instruments in which it occurs. It can perhaps
better be considered an overarching aim that gives rise to a multitude
of legal mechanisms, including prior assessment of environmental
harm, licensing or authorization that set out the conditions for
operation and the consequences for violation of the conditions, as well
as the adoption of strategies and policies. Emission limits and other
product or process standards, the use of best available techniques and
similar techniques can all be seen as applications of the concept of
prevention.
3. 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.
4. The duty of prevention extends to combating the introduction of
exogenous species into an ecosystem. Article V(4) of the 1976
Convention on Conservation of Nature in the South Pacific provides
that the contracting parties must carefully examine the consequences
of such introduction. More stringently, article 22 of the 1997 United
Nations Convention on the Law of the Non- Navigational Uses of
International Watercourses requires watercourse states to ...take all
measures necessary to prevent the introduction of species, alien or
new, into an international watercourse which may have effects
detrimental to the ecosystem of the watercourse resulting in significant
harm to other watercourse States.
5. 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.
H) Polluter Pays Principle
1. Principle 16 of the Rio Declaration provides:
1992 Rio Declaration
Principle 16
National authorities should endeavour to promote the internalization of
environmental costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the cost of pollution, with due
regard to the public interest and without distorting international trade and investment.

2. Principle 16 on internalization 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
subsidized 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.
3. 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 that the polluter should, in
principle, bear the cost of pollution.

4. 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:
a) the river can remain polluted and rendered unsuitable for certain
downstream activities, causing the downstream community to
suffer an economic loss;
b) the downstream community can build an adequate water
treatment plant at its own cost;
c) the polluter may receive public subsidies for controlling the
pollution.
5. 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.
6. Without elaboration, it should be noted that the PPP has also been
increasingly accepted and applied at national level including in
statutes in many countries in the developing world, and in their
national supreme courts such as in South Asia, Africa and elsewhere in
the world.
I) Access and Benefit Sharing regarding Natural Resources
1. Many indigenous and other local communities rely on natural resources
such as forests, high deserts, wetlands, waterways, and fisheries for
their livelihood or even existence. In addition, indigenous and other
local communities often have unique cultures integrated with natural
resources. These communities typically relate to these resources in a
sustainable way, or else their livelihoods would disappear or their
cultures would perish.
2. 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. In
addition to international human rights law, an international law
example is the 1995 United Nations Agreement on Fish Stocks, which
in article 24(2)(b) requires states to take into account when

establishing conservation and management measures the need to

ensure access to fisheries by indigenous people of developing states,
particularly Small Island Developing States. At the domestic level, in
addition to standard legislation protecting property rights for everyone,
several nations constitutions, legislation or customary law recognizes
property rights which indigenous or other local communities may
exercise over their land and waterways or which enable indigenous or
other local communities to take part in decision-making processes.
3. A related issue is the extent to which indigenous and other local
communities have the right to participate in, or otherwise should be
involved in, the management, development and preservation of the
resources on which they rely.
4. The 1993 Nuuk Declaration on Environment and Development in the
Arctic States, in Principle 7, recognizes the vital role of indigenous
peoples in managing natural resources.

1993 Nuuk Declaration on Environment and Development in the Arctic

States
Principle 7
We recognize the special role of indigenous peoples in environmental
management and development in the Arctic, and of the significance of their knowledge
and traditional practices, and will promote their effective participation in the

5. With respect to biological diversity, the vital role of indigenous and

other local communities is expressly recognized in preambular
paragraph 12 of the 1992 Convention on Biological Diversity, and is
further detailed in its articles 8(j), 10(c), and 17.2. Article 8(j) states
that:
1992 Convention on Biological Diversity Article 8(j)
Contracting Parties shall:
"subject to its national legislation, respect, preserve and maintain knowledge,
innovations and practices of indigenous and local communities embodying
traditional lifestyles...and promote their wider application with the approval and
involvement of the holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices".

6. As a practical matter, the knowledge of indigenous and other local

communities, their participation in decision-making and their
involvement in management is often crucial for the protection of local
ecosystems, for sound natural resource management, and for the

broader effort to achieve sustainable development taking into account

their traditional knowledge and cultural environment. Their
involvement in EIA procedures is an example of their valuable
participation in decision-making for sustainable development.
7. 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. In the words of article 8(j) (quoted above), what
does with their approval entail? Some believe that there is an
absolute right to such prior informed consent; some believe that such a
right exists but that it is subject to the proper exercise of eminent
domain; and others believe that no such right exists unless embodied
in domestic law. Similarly, questions exist regarding the terms on
which such knowledge and genetic resources may be used or, in the
words of article 8(j), what is equitable sharing? The analysis of these
questions may differ depending on whether the local community is
indigenous or not, to the extent indigenous people have different or
additional rights under international or domestic law. For example, the
International Labour Organization has adopted various conventions
relating to indigenous people, starting in 1936 with the, now outdated,
Recruiting of Indigenous Workers Convention, to the 1989 Indigenous
and Tribal Peoples Convention; also the 1992 Forest Principles 2(d),
5(a) and 12(d) refer to the recognition of traditional or indigenous
rights.
8. At the time of this writing (2005), these questions are being discussed
in several international fora, including the Conference of the Parties to
the 1992 Convention on Biological Diversity, the World Intellectual
Property Organization, the World Trade Organization Agreement on
Trade-Related Aspects of Intellectual Property Rights, the World Bank,
the International Finance Corporation, and various regional
development banks and export credit agencies. Some institutions
already have processes in place that are similar to prior informed
consent.
J) Common Heritage and Common Concern of Humankind
1. The concepts of common heritage of humankind and common
concern of humankind reflect the growing awareness of the
interdependence of the biosphere and the environmental problems
besetting it, as well as of the global nature of many environmental
problems and the critical importance of those problems. It is thus

increasingly acknowledged that the international community has an

interest in these issues.
2. The protection, preservation and enhancement of the natural
environment, particularly the proper management of the climate
system, biological diversity and fauna and flora of the Earth, are
generally recognized as the common concern of humankind. Basic
assumptions implicit in the common concern concept include that
states and other actors should not cause harm with regard to issues of
common concern, and that states and other actors share responsibility
for addressing common concerns.
3. The resources of outer space and celestial bodies and of the sea-bed,
ocean floor and subsoil thereof beyond the limits of national
jurisdiction are generally recognized as the common heritage of
humankind. The international communitys interest in these is probably
stronger, generally speaking, than it is with respect to common
concern, though the contours of that interest are not clearly defined.
K) Good Governance
1. The concept of good governance is relatively recent and reflects a
growing awareness of the importance to sustainable development of
transparent, accountable, honest governance, as well as a growing
awareness of the corrosive effect of corruption on public morale,
economic efficiency, political stability and sustainable development in
general. The concept implies, among others, that states and
international organizations should: (a) adopt democratic and
transparent decision-making procedures and financial accountability;
(b) take effective measures to combat official or other corruption; (c)
respect due process in their procedures and observe the rule of law
more generally; (d) protect human rights; and (e) conduct public
procurement in a transparent, non-corrupt manner.
2. 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.
3. Good governance requires full respect for the principles of the 1992 Rio
Declaration on Environment and Development, including the full
participation of women in all levels of decision- making. Achieving good

governance is essential to the progressive development, codification

and implementation of international and domestic law relating to
sustainable development.