UN Environment Program

8/19/2019 UN Environment Program

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UNITED NATIONS ENVIRONMENT PROGRAMME

(UNEP)

Environmental, Social and Economic Sutaina!ilit"

#rame$or%

DE&'ARATION O# PRIN&IP'ES

1. Precautionary Approach: UNEP applies a science-based precautionary

approach to its project design and implementation. It also recognizes that

the term en!ironmental degradation"# as stated in 1$$% in the &io

'eclaration on En!ironment and 'e!elopment" is interpreted to

encompass both negati!e impacts on the natural en!ironment" and

ad!erse social and economic impacts resulting (rom those impacts.

UNEP project approach should be science-based and must anticipate and

address harm be(ore it happens. )here there are threats o( serious or

irre!ersible damage" lac* o( (ull scienti+c certainty should not be used as

a reason (or a!oiding cost-e,ecti!e measures to pre!ent en!ironmental

degradation.

%. uman &ights-ased Approach /&A0: UNEPs E2E2 3rame4or* is

(ounded on a human rights-based approach to project management"

including the rights o( (uture generations. 5his means that sta*eholder

engagements and public participation (rom the project preparation to

closure should be based on the (ollo4ing procedural human rights

principles:

a0 E6uality and Non-discrimination: All indi!iduals are e6ual as human

being by !irtue o( the inherent dignity o( each human person. All

human beings are entitled to their human rights 4ithout discrimination

o( any *ind" such as race" colour" se7" age" language" religion" political

or other opinion" national or social origin" disability" property" birth or

other status.

b0 Participation and Inclusion: E!ery person and all peoples are entitled to

acti!e" (ree and meaning(ul participation in" contribution to" and

enjoyment o( ci!il" economic" social" cultural and political de!elopment

in 4hich human rights and (undamental (reedoms can be realized.


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8. Accountability and &ule o( 9a4: 5his re6uires accessible" e,ecti!e and

independent mechanisms and procedures o( redress based on appropriate

judicial and administrati!e mechanisms.


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SA#EGUARD STANDARD *IODIVERSIT+ &ONSERVATION, NATURA'

A*ITATS, AND SUSTAINA*'E MANAGEMENT O# 'IVING RESOUR&ES

Pur-oe . 5o ensure that projects underta*en directly by UNEP" or supported

by UNEP through partnerships" do not ad!ersely impact biodi!ersity"

habitats" or ecosystem ser!ices and a!oid or minimize any ad!erse impact

on priority ecosystem ser!ices1 o( rele!ance to a,ected communities

Sa/e0uard Re1uirement

1. UNEP 4ill not support directly or indirectly any acti!ity that 4ill

signi+cantly con!ert or degrade critical natural habitats and 4ill a!oid

signi+cant con!ersion or degradation o( habitats that are:

•

9egally protected• ;inimization o( habitat (ragmentation" such as 4ith biological

corridors"


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• Pre(erence gi!en to sitting physical in(rastructure in!estments on

lands 4here natural habitats ha!e already been con!erted to other

land uses"

• &estoring habitats during operations and?or a(ter operations and

pro!iding biodi!ersity and ecosystem ser!ices o,sets.

@. UNEP acti!ities should be legally permitted and consistent 4ith any

o


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originating (rom project acti!ities through the use or management o(

hazardous chemicals and 4aste materials" including pesticides.

Sa/e0uard Re1uirement

1. UNEP projects 4ill e7plore technically and +nancially (easible approaches

(or the e


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B. Pesticides 4ill be handled" stored" applied and disposed o( in accordance

4ith the 3A; International Gode o( Gonduct on 'istribution and Use o(

Pesticides.

C. UNEP 4ill a!oid or minimize the potential (or community e7posure to

hazardous materials and substances that maybe released by a project.

)here there is a potential (or the public to be e7posed to hazards" UNEP

projects 4ill e7ercise special care to a!oid or minimize their e7posure by

modi(ying" substituting" or eliminating the condition or material causing

the potential hazards.


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UNITED NATIONS ENVIRONMENT PROGRAMME

INTERNATIONA' ENVIRONMENTA' 'A3Emer0in0 Princi-le and &once-t

A. Sustainable Development, Integration and InterdependenceB. Inter-Generational and Intra-Generational Equity C. esponsibility !or "ransboundary #armD. "ransparency, $ublic $articipation and Access to In!ormation

and emediesE. Cooperation, and Common but Di%erentiated esponsibilities&. $recautionG. $revention#. $olluter $ays $rinciple

I. Access and Bene't S(aring regarding )atural esources *. Common #eritage and Common Concern o! #uman+ind . Good Governance

A4 Sutaina!le Develo-ment, Inte0ration and Interde-endence

1. 5he international community recognized sustainable de!elopment asthe o!erarching paradigm (or impro!ing 6uality o( li(e in 1$$%" atUNGE'. Although sustainable de!elopment is susceptible to some4hatdi,erent de+nitions" the most commonly accepted and cited de+nition

is that o( the rundtland Gommission on En!ironment and'e!elopment" 4hich stated in its 1$DC &eport" ;ur Gommon 3uture"that sustainable de!elopment is de!elopment that meets the needs o( the present 4ithout compromising the ability o( (uture generations tomeet their o4n needs.# 5he parameters o( sustainable de!elopmentare clari+ed in Agenda %1 and the &io 'eclaration" both adopted atUNGE'" and in subse6uent international regional and nationalinstruments.

%. Principle @ o( the &io 'eclaration pro!ides: In order to achie!esustainable de!elopment" en!ironmental protection shall constitute anintegral part o( the de!elopment process and cannot be considered inisolation (rom it.# Principle % states that Peace" de!elopment anden!ironmental protection are interdependent and indi!isible.#Principles @ and % ma*e clear that policies and acti!ities in !ariousspheres" including en!ironmental protection" must be integrated inorder to achie!e sustainable de!elopment. 5hey also ma*e clear thatthe e,orts to impro!e society" including those to protect the


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en!ironment" achie!e peace" and accomplish economic de!elopment"are interdependent. Principles @ and % thus embody the concepts o( integration and interdependence.

8. 5he concepts o( integration and interdependence are stated e!en more

clearly in paragraph B o( the 1$$ Gopenhagen 'eclaration on 2ocial'e!elopment" 4hich introduction states that economic de!elopment"social de!elopment and en!ironmental protection are interdependentand mutually rein(orcing components o( sustainable de!elopment"4hich is the (rame4or* (or our e,orts to achie!e a higher 6uality o( li(e(or all people#.

Paragraph o( the %% Johannesburg 'eclaration on 2ustainable'e!elopment con+rms this" by stating that 4e assume a collecti!eresponsibility to ad!ance and strengthen the interdependent andmutually rein(orcing pillars o( sustainable de!elopment /economic

de!elopment" social de!elopment and en!ironmental protection0 at thelocal" national" regional and global le!els.# Integration 4as one o( themain themes discussed at the %% Johannesburg )orld 2ummit on2ustainable 'e!elopment" 4ith particular emphasis on eradicatingpo!erty. ;ne o( the commitments o( >illennium 'e!elopment oalnumber C /Ensure en!ironmental sustainability#0" is to Integrate theprinciples o( sustainable de!elopment into country policies andprogrammes#

Paragraph 8 o( the >illennium 'eclaration spea*s o( the need (orgreater policy coherence and increased cooperation among multilateral

institutions" such as the United Nations" the )orld an*" and the )orld 5rade ;rganization. 5he de+nition o( sustainable de!elopment# (romthe rundtland Gommissions report" 6uoted abo!e" indicates theinterdependence o( generations" as 4ell. ;n the basis o( these andother international instruments" it is clear that integration andinterdependence are (undamental to sustainable de!elopment.

@. 5he concepts o( integration and interdependence in internationalen!ironmental la4 are 4holly consistent 4ith the nature o( thebiosphere" i.e. the concentric layers o( air" 4ater and land on 4hich li(eon earth depends. 2cientists increasingly understand the (undamental

interdependence o( the !arious elements o( the biosphere" ho4changes in one aspect can a,ect others" and the essential roles thatnature plays 4ith respect to human acti!ities and e7istence /e.g."puri(ying 4ater" pollinating plants" pro!iding (ood" pro!iding recreationopportunities" and controlling erosion and Foods0. In this respect"international en!ironmental la4 mirrors the most (undamentalin(rastructure o( human society /i.e." the en!ironment0.


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. 5he concept o( integration demonstrates a commitment to mo!ingen!ironmental considerations and objecti!es to the core o( international relations. 3or e7ample" en!ironmental considerations areincreasingly a (eature o( international economic policy and la4: thePreamble to the 1$$@ )orld 5rade ;rganization Agreement mentions

both sustainable de!elopment and en!ironmental protection" and thereare numerous regional and global treaties supporting an approach thatintegrates en!ironment and economic de!elopment" such as the 1$$%Gon!ention on iological 'i!ersity /G'#0" the 1$$@ United NationsGon!ention to combat 'eserti+cation in Gountries E7periencing 2erious'rought and?or 'eserti+cation" particularly in A(rica and the 1$$CKyoto Protocol on Glimate Ghange.

B. At the national le!el" the concept o( integration o( en!ironmentalconcerns 4ith all other policy areas is usually (ormulated as aprocedural rule to be applied by legislati!e and administrati!e bodies.

It is also a (undamental postulate o( most o( the national strategies (orsustainable de!elopment. 5he (uture may 4ell 4itness increasedattention to sustainable de!elopment la4#" in 4hich the speci+c la4sregarding all spheres o( acti!ity appropriately integrate en!ironmental"economic and social considerations.

C. En!ironmental Impact Assessment /EIA#0 has become one o( the moste,ecti!e and practical tools to support the implementation o( sustainable de!elopment and its integrati!e aspects. 5he greatmajority o( countries in the 4orld ha!e adopted in(ormal guidelines ormandatory regulations" applicable not only to public projects but o(ten

also as a direct obligation o( citizens. In addition" in many countriesin(ormal procedures o( impact assessment (or go!ernmental acti!itiesha!e been de!eloped. EIA is also 4idely accepted as a mechanism (orpublic participation in planning processes and decision-ma*ing and atool to pro!ide in(ormation and data to the public regarding projectsand other acti!ities.

D. Also necessary are approaches that ta*e into account long-termstrategies and that include the use o( en!ironmental and social impactassessment" ris* analysis" cost-bene+t analysis and natural resourcesaccounting. 2ome ha!e proposed so-called sustainable de!elopment

impact assessments" 4hich ta*e into account en!ironmental social andeconomic aspects. 5he integration o( en!ironmental" social andeconomic policies also re6uires transparency and broad publicparticipation in go!ernmental decision- ma*ing" as discussed in part cbelo4.

*) Inter5Generational and Intra5Generational E1uit"


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1. E6uity is central to the attainment o( sustainable de!elopment. 5his ise!ident (rom many international instruments. 3or e7ample" the 1$$%United Nations 3rame4or* Gon!ention on Glimate Ghange /UN3GG#0re(ers in article 8./10 to intergenerational e6uity" as do the lastpreambular paragraph o( the 1$$% G'" the 1$$% United Nations

Economic Gommission (or Europe Gon!ention on the Protection andUse o(

%. 5ransboundary )atercourses and International 9a*es" the 1$$@'eserti+cation Gon!ention and the %1 2toc*holm Gon!ention onPersistent ;rganic Pollutants /P;Ps#0" among others. As noted abo!e"the rundtland Gommissions &eport de+ned sustainable de!elopmentas de!elopment that meets the needs o( the present 4ithoutcompromising the ability o( (uture generations to meet their o4nneeds#= and it goes on to identi(y t4o *ey concepts# o( sustainablede!elopment. 5he +rst o( 4hich is the concept o( Lneeds" in particular

the essential needs o( the 4orlds poor" to 4hich o!erriding priorityshould be gi!en.# 2imilarly" Principle 8 o( the 1$$% &io 'eclarationstates that 5he right to de!elopment must be (ul+lled so as toe6uitably meet de!elopmental and en!ironmental needs o( presentand (uture generations#= and &io Principle pro!ides that All 2tatesand all people shall cooperate in the essential tas* o( eradicatingpo!erty as an indispensable re6uirement (or sustainable de!elopment"in order to decrease the disparities in standards o( li!ing and bettermeet the needs o( the majority o( the people o( the 4orld.# ParagraphB o( the Gopenhagen 'eclaration" the +rst sentence o( 4hich isreproduced abo!e" re(ers in subse6uent sentences to E6uitable social

de!elopment# and social justice#. 5he concept o( e6uity is alsoembodied in the United Nations >illennium oals /e.g. the Eradicationo( Po!erty0 and >illennium 'eclaration /e.g. paragraphs B" 11 and %10.

8. E6uity thus includes both inter-generational e6uity# /i.e. the right o( (uture generations to enjoy a (air le!el o( the common patrimony0 andintra- generational e6uity# /i.e. the right o( all people 4ithin thecurrent generation to (air access to the current generationsentitlement to the Earths natural resources0.

@. 5he present generation has a right to use and enjoy the resources o(

the Earth but is under an obligation to ta*e into account the long-termimpact o( its acti!ities and to sustain the resource base and the globalen!ironment (or the bene+t o( (uture generations o( human*ind. In thisconte7t" bene+t# is gi!en its broadest meaning as including" inter alia"economic" en!ironmental" social" and intrinsic gain.

. 2ome national courts ha!e re(erred to the right o( (uture generations incases be(ore them. 3or e7ample" the 2upreme Gourt o( the &epublic o(


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the Philippines decided" in the >inors ;posa case /Philippines - ;posaet. al. !. 3ulgencio 2. 3actoran" Jr. et al. .&. No. 11D80" that thepetitioners could +le a class suit" (or others o( their generation and (orthe succeeding generations. 5he Gourt"

B. Gonsidering the concept o( inter-generational responsibility" (urtherstated that e!ery generation has a responsibility to the ne7t topreser!e that rhythm and harmony necessary (or the (ull enjoyment o( a balanced and health(ul ecology.

&) Re-oni!ilit" /or Tran!oundar" arm

1. Principle %1 o( the 2toc*holm 'eclaration recognizes the so!ereignright o( each state upon its natural resources" emphasizing that it islimited by the responsibility (or transboundary harm.

672 Stoc%8olm Declaration

Princi-le 2

2tates ha!e" in accordance 4ith the Gharter o( the United Nations and the principles o( international la4" the so!ereign right to e7ploit their o4n resources pursuant to theiro4n en!ironmental policies" and the responsibility to ensure that acti!ities 4ithin their jurisdiction or control do not cause damage to the en!ironment o( other 2tates or o( areas beyond the limits o( national jurisdiction.#

%. 54enty years later" Principle %1 4as reiterated in Principle % o( the &io

'eclaration" 4ith the sole change o( adding the adjecti!ede!elopmental# bet4een the 4ords en!ironmental# and policies#:

662 Rio Declaration

Princi-le 2

2tates ha!e" in accordance 4ith the Gharter o( the United Nations and theprinciples o( international la4" the so!ereign right to e7ploit their o4n resourcespursuant to their o4n en!ironmental and de!elopmental policies" and theresponsibility to ensure that acti!ities 4ithin their jurisdiction or control do not causedamage to the en!ironment o( other 2tates or o( areas beyond the limits o( national

8. 2toc*holm Principle %1? &io Principle %" although part o( non-bindingte7ts" are nonetheless 4ell- established" and are regarded by some asa rule o( customary international la4. Either or both o( them ha!e beenrea


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the Association o( 2outh East Asian Nations /A2EAN#0 Agreement onthe Gonser!ation o( Nature and Natural &esources. 5he 1$C$Gon!ention on 9ong- &ange 5ransboundary Air Pollution reproducesPrinciple

@. stating that it Me7presses the common con!iction that 2tates ha!eM onthis matter. Principle %1 also appears in article 8 o( the 1$$%Gon!ention on iological 'i!ersity" to 4hich !irtually all the states o( the 4orld are parties" and" as restated in the 1$$% &io 'eclaration" inthe preamble o( the 1$$% UN3GGG" the 1$$$ Protocol on )ater andealth to the Gon!ention on the Protection and Use o( 5ransboundary)atercourses and International 9a*es" and the %1 2toc*holmGon!ention on Persistent ;rganic Pollutants /P;Ps#0. Also" theInternational Gourt o( Justice /IGJ#0 recognized in an ad!isory opinionthat 5he e7istence o( the general obligation o( states to ensure thatacti!ities 4ithin their jurisdiction and control respect the en!ironment

o( other states or o( areas beyond national control is no4 part o( thecorpus o( international la4 relating to the en!ironment.# /2ee 9egalityo( the 5hreat or Use o( Nuclear )eapons" Ad!isory ;pinion" IGJ &eports"pp. %@1-@%" 1$$B0.

. 2toc*holm Principle %1?&io Principle % contain t4o elements 4hichcannot be separated 4ithout (undamentally changing their sense ande,ect: /10 the so!ereign right o( states to e7ploit their o4n naturalresources" and /%0 the responsibility" or obligation" not to causedamage to the en!ironment o( other states or areas beyond the limitso( national jurisdiction. It is a 4ell-established practice that" 4ithin the

limits stipulated by international la4" e!ery state has the right tomanage and utilize natural resources 4ithin its jurisdiction and to(ormulate and pursue its o4n en!ironmental and de!elopmentalpolicies. o4e!er" one o( the limits imposed by international la4 onthat right is that states ha!e an obligation to protect their en!ironmentand pre!ent damage to neighboring en!ironments.

B. 2toc*holm Principle %1?&io Principle % aoon and other celestial bodies" and Antarctica.


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C. 5he e7act scope and implications o( 2toc*holm Principle %1?&ioPrinciple % are not clearly determined. It seems clear that not allinstances o( transboundary damage resulting (rom acti!ities 4ithin astates territory or control can be pre!ented or are unla4(ul" thoughcompensation may ne!ertheless be called (or= but the circumstances in

4hich those outcomes arise are not entirely clear.

D) Tran-arenc", Pu!lic Partici-ation and Acce to In/ormation andRemedie

1. Public participation and access to in(ormation are recognized inPrinciple 1 o( the &io 'eclaration.

662 Rio Declaration

Princi-le 9

En!ironmental issues are best handled 4ith the participation o( all concernedcitizens" at the rele!ant le!el. At the national le!el" each indi!idual shall ha!eappropriate access to

in(ormation concerning the en!ironment that is held bypublic authorities" including in(ormation on hazardous materials and acti!ities intheir communities" and the opportunity to participate in decision-ma*ingprocesses. 2tates shall (acilitate and encourage public a4areness andparticipation by ma*ing in(ormation 4idely a!ailable. E,ecti!e access to judicialand administrati!e proceedings" including redress and remedy" shall be

%. 5ransparency and access to in(ormation are essential to publicparticipation and sustainable de!elopment" (or e7ample" in order toallo4 the public to *no4 4hat the decision ma*ing processes are" 4hatdecisions are being contemplated" the alleged (actual bases (orproposed and accomplished go!ernmental actions" and other aspectso( go!ernmental processes. Public participation is essential tosustainable de!elopment and good go!ernance in that it is a condition(or responsi!e" transparent and accountable go!ernments. It is also acondition (or the acti!e engagement o( e6ually responsi!e" transparentand accountable Gi!il 2ociety organizations" including industrialconcerns" trade unions" and Non o!ernmental ;rganizations/N;s#0. Public participation in the conte7t o( sustainablede!elopment re6uires e,ecti!e protection o( the human right to hold

and e7press opinions and to see*" recei!e and impart ideas. It alsore6uires a right o( access to appropriate" comprehensible and timelyin(ormation held by go!ernments and industrial concerns on economicand social policies regarding the sustainable use o( natural resourcesand the protection o( the en!ironment" 4ithout imposing undue+nancial burdens upon the applicants and 4ith ade6uate protection o( pri!acy and business con+dentiality.


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8. 5he empo4erment o( people in the conte7t o( sustainable de!elopmentalso re6uires access to e,ecti!e judicial and administrati!eproceedings. 3or e7ample" states should ensure that 4heretransboundary harm has been or is li*ely to be caused" a,ectedindi!iduals and communities ha!e non-discriminatory access to

e,ecti!e judicial and administrati!e processes.

@. 5he 1$$% United Nations 3rame4or* Gon!ention on Glimate Ghange" inarticle @./10/i0" obliges Parties to promote public a4areness andparticipation in the process" including that o( N;s" though it does notcreate a public right o( access to in(ormation. 5he 1$$@ 'eserti+cationGon!ention recognizes" in article 8/a0/c0" the need to associate Gi!il2ociety 4ith the action o( the 2tate. 5he 1$$8 North AmericanAgreement on En!ironmental Gooperation re6uires parties to publishtheir en!ironmental la4s" regulations" procedures and administrati!erulings /article @0" to ensure that interested persons ha!e access to

judicial" 6uasi- judicial or administrati!e proceedings to (orce thego!ernment to en(orce en!ironmental la4 /article B0" and to ensurethat their judicial" 6uasi-judicial and administrati!e proceedings are(air" open and e6uitable /article C0. >ore commonly" international legalinstruments addressing access to in(ormation and public participationare con+ned to distinct conte7ts" such as En!ironmental ImpactAssessment. 3or e7ample" the 1$$% G' re6uires appropriate publicparticipation in EIA procedures in article 1@./10/a0= article 18 addressesthe need (or public education and a4areness.

. 5hese concepts mean that international institutions" such as

international +nancial institutions" should also implement open andtransparent decision- ma*ing procedures that are (ully a!ailable topublic participation. E7amples o( this include the )orld an* InspectionPanel" 4hich pro!ides groups a,ected by )orld an* projects theopportunity to re6uest an independent inspection into alleged!iolations o( an* policies and procedures. 5he petitioning processincluded in articles 1@ and 1 o( the 1$$8 North American Agreementon En!ironmental Gooperation also pro!ides signi+cant ne4 rights (orcitizens to participate in monitoring domestic en(orcement o( en!ironmental la4s. 5hese concepts also imply that N;s should bepro!ided at least obser!er status in international institutions and 4ith

respect to treaties" and should be appropriately relied upon (ore7pertise" in(ormation and other purposes.

B. In many countries" public participation rights are granted throughEn!ironmental Impact Assessment procedures 4ith broad publicparticipation or in !arious sectoral la4s adapted to the specialcircumstances o( each sector. Gonsultation 4ith" and dissemination o( in(ormation to the public are important objecti!es o( EIAs. 3or e7ample"


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article 1B/80 o( the 1$DB Gon!ention (or the Protection o( the Natural&esources and En!ironment o( the 2outh Paci+c &egion re6uires thatthe in(ormation gathered in the assessment be shared 4ith the publicand a,ected parties.

E) &oo-eration, and &ommon !ut Di:erentiated Re-oni!ilitie

1. Principle C o( the &io 'eclaration pro!ides:

662 Rio Declaration

Princi-le 7

2tates shall cooperate in a spirit o( global partnership to conser!e" protect and restorethe health and integrity o( the Earth1s ecosystem. In !ie4 o( the di,erent contributionsto global en!ironmental degradation" 2tates ha!e common but di,erentiatedresponsibilities. 5he de!eloped countries ac*no4ledge the responsibility that they bear inthe international pursuit o( sustainable de!elopment in !ie4 o( the pressures their

societies place on the global en!ironment and o( the technologies and +nancial resources

%. Principle C can be di!ided into t4o parts: /10 the duty to cooperate in aspirit o( global partnership= and /%0 common but di,erentiatedresponsibilities.

8. 5he duty to cooperate is 4ell-established in international la4" ase7empli+ed in articles and B o( chapter IO o( the Gharter o( theUnited Nations" to 4hich all UN member states" at present 1$1"subscribe" and applies on the global" regional and bilateral le!els. 5hegoal o( the &io 'eclaration is" according to the (ourth paragraph o( its

preamble" the establishment o( a ...ne4 and e6uitable globalpartnership...# 5he concept o( global partnership can be seen as amore recent re(ormulation o( the obligation to cooperate" and isbecoming increasingly important. Principle C re(ers to states" but theconcept o( global partnership may also be e7tended to non-stateentities. International organizations" business entities /including inparticular transnational business entities0" N;s and Gi!il 2ociety moregenerally should cooperate in and contribute to this global partnership.Polluters" regardless o( their legal (orm" may also ha!e alsoresponsibilities pursuant to the PolluterPays Principle#" described inparagraph B% and (urther.

@. Principle C also spea*s o( common but di,erentiated responsibilities. 5his element is a 4ay to ta*e account o( di,ering circumstances"particularly in each states contribution to the creation o( en!ironmental problems and in its ability to pre!ent" reduce andcontrol them. 2tates 4hose societies ha!e in the past imposed" orcurrently impose" a disproportionate pressure on the globalen!ironment and 4hich command relati!ely high le!els o(


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technological and +nancial resources bear a proportionally higherdegree o( responsibility in the international pursuit o( sustainablede!elopment.

. In practical terms" the concept o( common but di,erentiated

responsibilities is translated into the e7plicit recognition that di,erentstandards" delayed compliance timetables or less stringentcommitments may be appropriate (or di,erent countries" to encourageuni!ersal participation and e6uity. 5his may result in di,erential legalnorms" such as in the 1$DC >ontreal Protocol on 2ubstances thatdeplete the ;zone 9ayer /2ee chapter $ o( this 5raining >anual0. Indesigning speci+c di,erentiated regimes" the special needs andinterests o( de!eloping countries and o( countries 4ith economies intransition" 4ith particular regard to least de!eloped countries andthose a,ected ad!ersely by en!ironmental" social and de!elopmentalconsiderations" should be recognized.

B. According to the concept o( common but di,erentiated responsibilities"de!eloped countries bear a special burden o( responsibility in reducingand eliminating unsustainable patterns o( production and consumptionand in contributing to capacity-building in de!eloping countries" interalia by pro!iding +nancial assistance and access to en!ironmentallysound technology. In particular" de!eloped countries should play aleading role and assume primary responsibility in matters o( rele!anceto sustainable de!elopment. A number o( international agreementsrecognize a duty on the part o( industrialized countries to contribute tothe e,orts o( de!eloping countries to pursue sustainable de!elopment

and to assist de!eloping countries in protecting the globalen!ironment. 2uch assistance may entail" apart (rom consultation andnegotiation" +nancial aid" trans(er o( en!ironmentally sound technologyand cooperation through international organizations.

C. Article @ o( the 1$$% Glimate Ghange Gon!ention recognizes thespecial circumstances and needs o( de!eloping countries and thenstructures the duties and obligations to be underta*en by statesaccordingly. 5he idea o( common but di,erentiated responsibilities andrespecti!e capabilities is stated in article 8 as the +rst principle toguide the parties in the implementation o( the Gon!ention. Article 1%

allo4s (or di,erences in reporting re6uirements. 5he pro!isions o( theGon!ention on joint implementation /article @./%0/a0" /b00 and guidancepro!ided on the issue by its Gon(erence o( the Parties are also o( rele!ance. 5he 1$$% Gon!ention on iological 'i!ersity states in article% /@0 that implementation o( obligations underta*en by de!elopingcountries 4ill depend on the commitments o( de!eloped countries topro!ide ne4 and additional +nancial resources and to pro!ide access toand trans(er o( technology on (air and most (a!ourable terms. ;ther


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measures to a!oid or minimize such a threat.# 5his language is lessrestricti!e than Principle 1" because signi+cant# is a lo4er thresholdthan serious or irre!ersible# and the language does not limitpermissible action to cost-e,ecti!e measures. Article 8/80 o( the 1$$%Glimate Ghange Gon!ention appears to ta*e a some4hat more action-

oriented approach than Principle 1" stating: 5he parties should ta*eprecautionary measures to anticipate" pre!ent or minimize the causeo( climate change and mitigate its ad!erse e,ects...# 5he ne7tsentence" ho4e!er" repeats Principle 1 almost !erbatim.

@. ;ther (ormulations also e7ist. ;ne o( the most (orce(ul is that in article@/80/(0 o( the 1$$1 ama*o Gon!ention on the an o( the Import intoA(rica and the Gontrol o( their 5ransboundary >o!ement and>anagement o( azardous )astes 4ithin A(rica" 4hich re6uires partiesto ta*e action i( there is scienti+c uncertainty. Another e7ample can be(ound in the 1$$B Protocol to the 9ondon Gon!ention" 4hich states in

article 8/10: MIn implementing this Protocol" Gontracting parties shallapply a precautionary approach to en!ironmental protection ... 4henthere is reason to belie!e that 4astes or other matter introduced in themarine en!ironment are li*ely to cause harm e!en 4hen there is noconclusi!e e!idence to pro!e a causal relation bet4een inputs andtheir e,ectsM. Its second preambular paragraph" emphasizes theachie!ements" 4ithin the (rame4or* o( the 9ondon Gon!ention"especially the e!olution to4ards approaches based on precaution andpre!ention.

. 5he % Gartagena iosa(ety Protocol to the 1$$% G' is based upon

the precautionary approach. It is contained in article 1 on the objecti!eo( the Protocol 4hich re(ers e7plicitly to &io Principle 1. Articles 1and 11 contain the *ey pro!isions regarding precaution. Article 1/B0pro!ides that lac* o( scienti+c certainty due to insuodi+ed ;rganisms /9>;#0 shall not pre!entthe Party (rom ta*ing a decision" as appropriate 4ith regard to theimport o( the 9>; in 6uestion..." in order to a!oid or minimize suchpotential ad!erse e,ects.# Article 11 uses similar language. 5hus" acountry may reject an import e!en in the absence o( scienti+c certaintythat it 4ill potentially cause harm. 5hese pro!isions are broader than

&io Principle 1 because they do not re(er to serious or irre!ersibledamage# or cost-e,ecti!eness.

B. 5he 1$$ Agreement on 3ish 2toc*s adopts the precautionary approachin article B= and its article /c0 states that the application o( theprecautionary approach is one o( the general principles o( theAgreement. /2ee also Anne7 II to the Agreement" uidelines (orApplication o( Precautionary &e(erence Points in Gonser!ation and


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>anagement o( 2traddling 3ish 2toc*s and ighly >igratory 3ish2toc*s#0. 5he precautionary approach is also included in Anne7 II"article 8/80/c0" o( the Gon!ention (or the Protection o( the >arineEn!ironment o( the North-East Atlantic.

C. ;ther international agreements in 4hich the precautionary approachappears include: elsin*i Gon!ention on the Protection o( the >arineEn!ironment o( the altic 2ea" Area article 8/%0/1$$%0= Amendments tothe Protocol (or the Protection o( the >editerranean 2ea againstPollution (rom 9and-ased 2ources" Preamble /1$$B0= Protocol to the1$C$ Gon!ention on 9ong- &ange 5ransboundary Air Pollution to abateAcidi+cation" Eutrophication and round-9e!el ;zone" Preamble/1$$$0= the Gartagena Protocol on iosa(ety" Preamble /%0=Gon!ention on the Gonser!ation and >anagement o( ighly >igratory3ish 2toc*s in the )estern and Gentral Paci+c ;cean" Preamble /%0=Gon!ention on the Gonser!ation and >anagement o( 3ishery &esources

in the 2outh-East Atlantic ;cean" Preamble /%10= the 2toc*holmGon!ention on Persistent ;rganic Pollutants" Preamble /%10= theEuropean Energy Gharter 5reaty" article 1$/10 /1$$@0= Agreement onthe Gonser!ation o( Albatrosses and Petrels" article II/80 /%10= theGon!ention (or Gooperation in the Protection and 2ustainable'e!elopment o( the >arine and Goastal En!ironment o( the NortheastPaci+c" article /B0/a0 /%%0= and the A2EAN Agreement on 5ransboundary aze Pollution" article 8./80 /%%0.

D. Goncrete application o( the precautionary approach can be (ound intreaties (or the management o( li!ing resources" especially those

concerning +shing. 5he 1$$ United Nations Agreement (or theImplementation o( the Pro!isions o( the United Nations Gon!ention onthe 9a4 o( the 2ea o( 1 'ecember 1$D%" relating to the Gonser!ationand >anagement o( 2traddling 3ish 2toc*s and ighly >igratory 3ish2toc*s declares that states shall apply the precautionary approach/article /c00. Article B adds that such application includes ta*ing aprecautionary approach 4idely to conser!ation" management ande7ploitation o( straddling +sh stoc*s and highly migratory +sh stoc*s"inter alia" by impro!ing decision-ma*ing in this +eld" by ta*ing intoaccount uncertainties relating to the size and producti!ity o( thestoc*s" by de!eloping *no4ledge" by not e7ceeding re(erence points"

by enhanced monitoring and by adopting" i( necessary" emergencymeasures. 2imilarly" the % Gon!ention on the Gonser!ation and>anagement o( ighly >igratory 3ish 2toc*s in the )estern andGentral Paci+c ;cean pro!ides that the Gommission created by thisinstrument shall apply the precautionary approach /article /c00. EG&egulation %8C1?%% o( 'ecember %% on the Gonser!ation and2ustainable E7ploitation o( 3isheries &esources under the Gommon3isheries Policy also (oresees that the Gommunity ...shall apply the


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precautionary approach in ta*ing measures designed to protect andconser!e li!ing a6uatic resources" to pro!ide (or their sustainablee7ploitation and to minimize the impact o( +shing acti!ities on marineecosystems#.

$. 5he precautionary principle has been in!o*ed be(ore the InternationalGourt o( Justice. Judge )eeramantry in his opinion dissenting (rom the;rder o( the Gourt o( %% 2eptember 1$$ concluded that theprecautionary principle 4as gaining increasing support as part o( theinternational la4 o( the en!ironment. Judge )eeramantry stated:

“The law cannot function in protection of the environment unless alegal principle is involved to meet this evidentiary diculty, andenvironmental law has responded with what has come to be describedas the precautionary principle – a principle which is gaining increasingsupport as part of the international law of the environment.”

IGJ ;rder o( %% 2eptember 1$$" at p. 8@% /)eeramantry" J."dissenting0. In the abQi*o!o Gase" the International Gourt o( Justicedid not accept ungarys argument that a state o( necessity couldarise (rom application o( the precautionary principle.

1. Gentral to all o( the preceding (ormulations is the element o( anticipation" reFecting the need (or e,ecti!e en!ironmental measuresto be based upon actions 4hich ta*e a long-term approach and 4hichanticipate possible re!isions on the basis o( changes in scienti+c*no4ledge. Also central to precaution is the reality that en!ironmental

decision ma*ers seldom" i( e!er" ha!e all the in(ormation they 4ouldli*e to ha!e be(ore ma*ing a decision.

11. 5he e7ercise o( precaution 4ith respect to ris* management canta*e many (orms" including most commonly ta*ing pollution-pre!entionactions or placing the burden o( proo( sa(ety on the person or personscarrying out or intending to carry out an acti!ity that may cause harm"including using or importing a drug or other potentially dangeroussubstance. Another precautionary method is to pro!ide additionalmargins o( sa(ety" beyond those that are directly !eri+able by e7istingscienti+c in(ormation" (or !ulnerable groups such as children.

G) Prevention

1. E7perience and scienti+c e7pertise demonstrate that pre!ention o( en!ironmental harm should be the olden &ule# (or the en!ironment"(or both ecological and economic reasons. It is (re6uently impossible toremedy en!ironmental injury: the e7tinction o( a species o( (auna orFora" erosion" loss o( human li(e and the dumping o( persistent


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pollutants into the sea" (or e7ample" create irre!ersible situations. E!en4hen harm is remediable" the costs o( rehabilitation are o(tenprohibiti!e. An obligation o( pre!ention also emerges (rom theinternational responsibility not to cause signi+cant damage to theen!ironment e7tra-territorially" but the pre!enti!e approach see*s to

a!oid harm irrespecti!e o( 4hether or not there is transboundaryimpact or international responsibility.

%. 5he concept o( pre!ention is comple7" o4ing to the number anddi!ersity o( the legal instruments in 4hich it occurs. It can perhapsbetter be considered an o!erarching aim that gi!es rise to a multitudeo( legal mechanisms" including prior assessment o( en!ironmentalharm" licensing or authorization that set out the conditions (oroperation and the conse6uences (or !iolation o( the conditions" as 4ellas the adoption o( strategies and policies. Emission limits and otherproduct or process standards" the use o( best a!ailable techni6ues and

similar techni6ues can all be seen as applications o( the concept o( pre!ention.

8. ;ne obligation that Fo4s (rom the concept o( pre!ention is priorassessment o( potentially harm(ul acti!ities. 2ince the (ailure toe7ercise due diligence to pre!ent transboundary harm can lead tointernational responsibility" it may be considered that a properlyconducted En!ironmental Impact Assessment might ser!e as astandard (or determining 4hether or not due diligence 4as e7ercised.Pre!enti!e mechanisms also include monitoring" noti+cation" ande7change o( in(ormation" all o( 4hich are obligations in almost all

recent en!ironmental agreements.

@. 5he duty o( pre!ention e7tends to combating the introduction o( e7ogenous species into an ecosystem. Article H/@0 o( the 1$CBGon!ention on Gonser!ation o( Nature in the 2outh Paci+c pro!idesthat the contracting parties must care(ully e7amine the conse6uenceso( such introduction. >ore stringently" article %% o( the 1$$C UnitedNations Gon!ention on the 9a4 o( the Non- Na!igational Uses o( International )atercourses re6uires 4atercourse states to ...ta*e allmeasures necessary to pre!ent the introduction o( species" alien orne4" into an international 4atercourse 4hich may ha!e e,ects

detrimental to the ecosystem o( the 4atercourse resulting in signi+cantharm to other 4atercourse 2tates.#

. In (act" the objecti!e o( most international en!ironmental instrumentsis to pre!ent en!ironmental harm" 4hether they concern pollution o( the sea" inland 4aters" the atmosphere" soil or the protection o( humanli(e or li!ing resources. ;nly a relati!ely (e4 international agreements


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use other approaches" such as the traditional principle o( stateresponsibility or direct compensation o( the !ictims.

) Polluter Pa" Princi-le

1. Principle 1B o( the &io 'eclaration pro!ides:

662 Rio Declaration

Princi-le <

National authorities should endea!our to promote the internalization o( en!ironmental costs and the use o( economic instruments" ta*ing into account theapproach that the polluter should" in principle" bear the cost o( pollution" 4ith dueregard to the public interest and 4ithout distorting international trade and in!estment.#

%. Principle 1B on internalization o( costs includes 4hat has become

*no4n as the Polluter Pays Principle# or PPP#. According to the PPP"the en!ironmental costs o( economic acti!ities" including the cost o( pre!enting potential harm" should be internalized rather than imposedupon society at large. An early !ersion o( the PPP 4as de!eloped bythe ;rganization (or Economic Go- operation and 'e!elopment/;EG'#0 in the 1$Cs in an e,ort to ensure that companies 4ould paythe (ull costs o( complying 4ith pollution- control la4s and 4ere notsubsidized by the state. 5he PPP 4as adopted by the ;EG' as aneconomic principle and as the most eanual.

8. 2ince 1$C%" the PPP has gained increasing acceptance" has e7pandedin its scope to include /at least in theory0 all costs associated 4ithpollution" and has mo!ed beyond the de!eloped- country conte7t.2ome recent international instruments that include it are: the %8Protocol on Gi!il 9iability and Gompensation (or 'amage caused by the 5ransboundary E,ects o( Industrial Accidents on 5ransboundary )aters

to the 1$$% Gon!ention on the Protection and Use o( 5ransboundary)atercourses and International 9a*es and to the 1$$% Gon!ention onthe 5ransboundary E,ects o( Industrial Accidents" Preamble"paragraphs t4o and three= and the 1$$B Protocol to the 9ondonGon!ention" article 8.%. o( 4hich states that the polluter should" inprinciple" bear the cost o( pollution.


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@. In (act" pollution costs can be borne either by the community" by those4ho pollute" or by consumers. Gommunity assumption o( the costs canbe demonstrated using the e7ample o( an unregulated industry thatdischarges pollutants into a ri!er. 5here are at least three possibilities:

a) the river can remain polluted and rendered unsuitable for certaindownstream activities, causing the downstream community tosuer an economic loss

b) the downstream community can build an ade!uate water treatment plant at its own cost

c) the polluter may receive public subsidies for controlling the pollution.

. In all these possibilities" the a,ected community bears the cost o( thepollution and o( the measures designed to eliminate it or to mitigate itse,ects. 5he PPP a!oids this result by obliging the polluter to bear the

(ull costs o( pollution" to internalise# them. In most cases" presumably"the enterprise 4ill in (act incorporate the costs into the price o( itsproduct/s0 and thus pass the cost on to the consumer= but it need notdo this (or the PPP to ha!e its intended e,ect.

B. )ithout elaboration" it should be noted that the PPP has also beenincreasingly accepted and applied at national le!el including instatutes in many countries in the de!eloping 4orld" and in theirnational supreme courts such as in 2outh Asia" A(rica and else4here inthe 4orld.

I) Acce and *ene=t S8arin0 re0ardin0 Natural Reource

1. >any indigenous and other local communities rely on natural resourcessuch as (orests" high deserts" 4etlands" 4ater4ays" and +sheries (ortheir li!elihood or e!en e7istence. In addition" indigenous and otherlocal communities o(ten ha!e uni6ue cultures integrated 4ith naturalresources. 5hese communities typically relate to these resources in asustainable 4ay" or else their li!elihoods 4ould disappear or theircultures 4ould perish.

%. As a general matter" it is clear (rom &io Principle 1 /6uoted in

paragraph %$ abo!e0 and international human rights norms that thesecommunities and the indi!iduals comprising them ha!e the right toparticipate in decision-ma*ing processes 4ith respect to thoseresources. 5hey may also ha!e substanti!e rights to those resources"the nature o( 4hich depends on both international and domestic la4. Inaddition to international human rights la4" an international la4e7ample is the 1$$ United Nations Agreement on 3ish 2toc*s" 4hichin article %@/%0/b0 re6uires states to ta*e into account 4hen


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establishing conser!ation and management measures the need toensure access to +sheries by indigenous people o( de!eloping states"particularly 2mall Island 'e!eloping 2tates. At the domestic le!el" inaddition to standard legislation protecting property rights (or e!eryone"se!eral nations constitutions" legislation or customary la4 recognizes

property rights 4hich indigenous or other local communities maye7ercise o!er their land and 4ater4ays or 4hich enable indigenous orother local communities to ta*e part in decision-ma*ing processes.

8. A related issue is the e7tent to 4hich indigenous and other localcommunities ha!e the right to participate in" or other4ise should bein!ol!ed in" the management" de!elopment and preser!ation o( theresources on 4hich they rely.

@. 5he 1$$8 Nuu* 'eclaration on En!ironment and 'e!elopment in theArctic 2tates" in Principle C" recognizes the !ital role o( indigenous

peoples in managing natural resources.

66> Nuu% Declaration on Environment and Develo-ment in t8e Arctic

State

Princi-le 7

)e recognize the special role o( indigenous peoples in en!ironmentalmanagement and de!elopment in the Arctic" and o( the signi+cance o( their *no4ledgeand traditional practices" and 4ill promote their e,ecti!e participation in the

. )ith respect to biological di!ersity" the !ital role o( indigenous andother local communities is e7pressly recognized in preambularparagraph 1% o( the 1$$% Gon!ention on iological 'i!ersity" and is(urther detailed in its articles D/j0" 1/c0" and 1C.%. Article D/j0 statesthat:

662 &onvention on *iolo0ical Diverit" Article ?(@)

Gontracting Parties shall:

Msubject to its national legislation" respect" preser!e and maintain *no4ledge"inno!ations and practices o( indigenous and local communities embodyingtraditional li(estyles...and promote their 4ider application 4ith the appro!al and

in!ol!ement o( the holders o( such *no4ledge" inno!ations and practices andencourage the e6uitable sharing o( the bene+ts arising (rom the utilization o( such*no4led e" inno!ations and racticesM.

B. As a practical matter" the *no4ledge o( indigenous and other localcommunities" their participation in decision-ma*ing and theirin!ol!ement in management is o(ten crucial (or the protection o( localecosystems" (or sound natural resource management" and (or the


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broader e,ort to achie!e sustainable de!elopment ta*ing into accounttheir traditional *no4ledge and cultural en!ironment. 5heirin!ol!ement in EIA procedures is an e7ample o( their !aluableparticipation in decision-ma*ing (or sustainable de!elopment.

C. As a legal matter" the 6uestion has arisen 4hether indigenous andlocal communities ha!e" in addition to the procedural and substanti!erights identi+ed abo!e" the right to Prior In(ormed Gonsent /PIG#0/sometimes re(erred to as (ree" prior and in(ormed consent# or 3PIG#04ith respect to the use o( their *no4ledge and the genetic resourceson 4hich they rely. In the 4ords o( article D/j0 /6uoted abo!e0" 4hatdoes 4ith their appro!al# entailR 2ome belie!e that there is anabsolute right to such prior in(ormed consent= some belie!e that such aright e7ists but that it is subject to the proper e7ercise o( eminentdomain= and others belie!e that no such right e7ists unless embodiedin domestic la4. 2imilarly" 6uestions e7ist regarding the terms on

4hich such *no4ledge and genetic resources may be used or" in the4ords o( article D/j0" 4hat is e6uitable sharing#R 5he analysis o( these6uestions may di,er depending on 4hether the local community isindigenous or not" to the e7tent indigenous people ha!e di,erent oradditional rights under international or domestic la4. 3or e7ample" theInternational 9abour ;rganization has adopted !arious con!entionsrelating to indigenous people" starting in 1$8B 4ith the" no4 outdated"&ecruiting o( Indigenous )or*ers Gon!ention" to the 1$D$ Indigenousand 5ribal Peoples Gon!ention= also the 1$$% 3orest Principles %/d0"/a0 and 1%/d0 re(er to the recognition o( traditional or indigenousrights.

D. At the time o( this 4riting /%0" these 6uestions are being discussedin se!eral international (ora" including the Gon(erence o( the Parties tothe 1$$% Gon!ention on iological 'i!ersity" the )orld IntellectualProperty ;rganization" the )orld 5rade ;rganization Agreement on 5rade-&elated Aspects o( Intellectual Property &ights" the )orld an*"the International 3inance Gorporation" and !arious regionalde!elopment ban*s and e7port credit agencies. 2ome institutionsalready ha!e processes in place that are similar to prior in(ormedconsent.

) &ommon erita0e and &ommon &oncern o/ uman%ind

1. 5he concepts o( common heritage o( human*ind# and commonconcern o( human*ind# reFect the gro4ing a4areness o( theinterdependence o( the biosphere and the en!ironmental problemsbesetting it" as 4ell as o( the global nature o( many en!ironmentalproblems and the critical importance o( those problems. It is thus


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increasingly ac*no4ledged that the international community has aninterest in these issues.

%. 5he protection" preser!ation and enhancement o( the naturalen!ironment" particularly the proper management o( the climate

system" biological di!ersity and (auna and Fora o( the Earth" aregenerally recognized as the common concern o( human*ind. asicassumptions implicit in the common concern concept include thatstates and other actors should not cause harm 4ith regard to issues o( common concern" and that states and other actors share responsibility(or addressing common concerns.

8. 5he resources o( outer space and celestial bodies and o( the sea-bed"ocean Foor and subsoil thereo( beyond the limits o( national jurisdiction are generally recognized as the common heritage o( human*ind. 5he international communitys interest in these is probably

stronger" generally spea*ing" than it is 4ith respect to commonconcern" though the contours o( that interest are not clearly de+ned.

B) Good Governance

1. 5he concept o( good go!ernance is relati!ely recent and reFects agro4ing a4areness o( the importance to sustainable de!elopment o( transparent" accountable" honest go!ernance" as 4ell as a gro4inga4areness o( the corrosi!e e,ect o( corruption on public morale"economic e


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UN Environment Program

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