| United Nations | E/CN.17/1997/8 |
Economic and Social Council
Distr. GENERAL
10 February 1997
ORIGINAL: ENGLISH
COMMISSION ON SUSTAINABLE DEVELOPMENT
Fifth session
7-25 April 1997
Rio Declaration on Environment and Development:
application and implementation
Report of the Secretary-General
CONTENTS
Paragraphs Page
Introduction ............................................... 1 - 15 3
Principle 1 ................................................ 16 - 20 5
Principle 2 ................................................ 21 - 23 7
Principle 3 ................................................ 24 - 30 8
Principle 4 ................................................ 31 - 35 9
Principle 5 ................................................ 36 - 39 10
Principle 6 ................................................ 40 - 43 11
Principle 7 ................................................ 44 - 50 12
Principle 8 ................................................ 51 - 55 14
Principle 9 ................................................ 56 - 59 15
Principle 10 ............................................... 60 - 66 17
Principle 11 ............................................... 67 - 69 18
Principle 12 ............................................... 70 - 71 19
Principle 13 ............................................... 72 - 76 20
Principle 14 ............................................... 77 - 79 21
Principle 15 ............................................... 80 - 86 22
Principle 16 ............................................... 87 - 90 24
Principle 17 ............................................... 91 - 95 25
Principle 18 ............................................... 96 - 97 26
Principle 19 ............................................... 98 - 100 27
Principle 20 ............................................... 101 - 106 28
Principle 21 ............................................... 107 - 109 29
Principle 22 ............................................... 110 - 115 29
Principle 23 ............................................... 116 31
Principle 24 ............................................... 117 - 120 31
Principle 25 ............................................... 121 - 123 32
Principle 26 ............................................... 124 - 126 32
Principle 27 ............................................... 127 - 128 33
INTRODUCTION
1. The United Nations Conference on Environment and Development (UNCED),
held in Rio de Janeiro in 1992, adopted three instruments: the Rio
Declaration on Environment and Development (the Rio Declaration); Agenda 21;
and the Non-Legally Binding Authoritative Statement of Principles For a Global
Consensus on the Management, Conservation and Sustainable Development of all
Types of Forests (the Forest Principles). In addition, two treaties were
opened for signature at the Conference: the Convention on Biological
Diversity 1/ and the United Nations Framework Convention on Climate Change. 2/
2. The Rio Declaration contains a preamble and 27 principles, which aim to
guide the international community in its efforts to achieve sustainable
development. It reaffirms and seeks to build upon the Declaration of the
United Nations Conference on the Human Environment, adopted at Stockholm on
16 June 1972, hereinafter referred to as the Stockholm Declaration.
3. The General Assembly in its resolution 47/190 of 22 December 1992
endorses the Rio Declaration and urges that the necessary action be taken to
provide effective follow-up. In resolution 47/191 it recommends that the
Commission on Sustainable Development promote the incorporation of the
principles of the Rio Declaration on Environment and Development in the
implementation of Agenda 21. In resolution 49/113 of 19 December 1994, it
urges all Governments to promote widespread dissemination at all levels of the
Rio Declaration and requests the Secretary-General to ensure that its
principles are incorporated in the programmes and processes of the competent
bodies and organs of the United Nations system.
4. In resolution 51/181 of 16 December 1996 the General Assembly invites
the Secretary-General to provide for the 1997 special session on the overall
review and appraisal of Agenda 21 "information on the application of the
principles contained in the Rio Declaration" and decides to consider "the
application of the principles of the Rio Declaration at all levels - national,
regional and international - and to make relevant recommendations thereon". 3/
5. The present report examines progress in the application and
implementation of the principles of the Rio Declaration, 4/ focusing on the
period 1992-1996. It takes the Rio Declaration as a starting point. The
report does not attempt to provide a comprehensive overview but rather gives
an indication of the status of incorporation of the principles of the Rio
Declaration into national and international law. The examples given are used
to illustrate some of the ways in which the principles have been applied or
implemented. In particular, at the national level, the report provides
illustrations rather than comprehensive information. In May 1996, the
Ministry of Housing, Spatial Planning and the Environment of the Netherlands
organized a meeting on the codification of the Rio Principles in national
legislation, the results of which were an important source for this report.
6. The legal status of each of the principles varies considerably. Some
are firmly established in international law, while others are only in the
process of gaining acceptance. Some principles appear in global or regionally
binding instruments, while others can only be identified in soft-law
instruments. It is difficult in many cases to establish the parameters or the
precise legal status of each principle. The manner in which each principle
applies to a particular activity or incident would have to be considered in
relation to the facts and circumstances of each case, taking account of
various factors, including its sources and textual context, its language, the
particular activity at issue, and the particular circumstances in which it
occurs, including the actors and the geographical region.
7. In regard to the nature of the principles, two different types can be
determined. Some are of a procedural nature, such as principle 17 on
environmental impact assessment, whereas others are of a more substantive
nature, such as principle 2 on the duty not to cause transfrontier
environmental harm. Procedural principles are often translated into specific
procedural provisions in national legislation. On the other hand, substantive
principles are explicitly incorporated in national laws or regulations,
establishing general obligations for Governments and/or citizens.
8. Some of the principles were already frequently appearing in national
and/or international law at the time of the Conference. Others were newly
formulated and represented more recent concepts. Both categories of principle
were incorporated into the instruments adopted at the Conference. Many of the
principles are prominent in the two treaties opened for signature. Since the
Conference, considerable activity has taken place in the application and
implementation of, in particular, international environmental law, where some
important binding instruments have been negotiated, adopted or entered into
force.
9. In the present report, the main focus is on the international
instruments adopted at the Conference and on major conventions adopted or
having entered into force since then, such as the United Nations Convention to
Combat Desertification in Those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa, hereinafter referred to as the
Desertification Convention; 5/ the 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, hereinafter referred to as the
1995 Agreement on Fish Stocks; 6/ and the United Nations Convention on the Law
of the Sea, hereinafter referred to as UNCLOS. 7/ The principles are also
frequently taken into account in ongoing negotiations of new international
legal instruments. Their repeated inclusion and confirmation, even if
sometimes differently worded, affirms their continuous support by the
international community.
10. Besides binding instruments, many of the principles of the Rio
Declaration are included in instruments adopted at major intergovernmental
conferences held since 1992: the World Conference on Human Rights (Vienna,
1993); the International Conference on Population and Development (Cairo,
1994); the World Summit for Social Development (Copenhagen, 1995); the Fourth
World Conference on Women (Beijing, 1995); the United Nations Conference on
Human Settlements (Istanbul, 1996); and the World Food Summit (Rome, 1996).
11. In some instances, national implementation of the principles of the Rio
Declaration is directly related to a State's implementation of and compliance
with binding international instruments - i.e., principles which apply as a
matter of treaty law. The requirement to undertake environmental impact
assessments for certain activities on the national level, as stipulated in
principle 17, is, for example, an obligation of the Parties to the Convention
on Biological Diversity, which are to introduce appropriate procedures
requiring environmental impact assessment, as provided for in article 14.1 (a)
of the Convention.
12. Not all of the principles have the same significance for national
legislation. Some call for action primarily on the international level, and
therefore no national examples are mentioned (principles 2, 6, 12, 23, 24, 25,
26 and 27). Other principles - for example, 10, 11, 13, 16 and 17 - imply
actions specifically at the national level. Some principles are more in the
nature of guidelines or policy directives which do necessarily give rise to
specific legal rights and obligations. For instance, principles 5, 22 and 25
may be implemented in national sectoral laws; however, they are more often
reflected in national policies or are incorporated in national strategies and
national (environmental) action plans.
13. Considerable progress in implementing certain principles has been
achieved, especially during the past two years. Although such progress at the
national level cannot be solely attributed to the incorporation of the
principles in the Rio Declaration, their recognition in that context can serve
as a stimulus for action. Recent reviews and adaptations of pre-Conference
national legislation are repeatedly based on and inspired by the concept of
sustainable development.
14. As a result of the differences among national legal systems, the
techniques of implementation vary from State to State. Many States
incorporate principles as embodied in the Rio Declaration into national
legislation by means of either constitutional provisions or general provisions
in sectoral laws or regulations. A different approach is to adopt provisions
in national laws or regulations that reflect a specific principle in a
substantive manner without explicitly referring to it as a principle.
Moreover, in an increasing number of cases national courts refer to a
principle in the Rio Declaration, sometimes explicitly citing it.
15. The present report will proceed to consider each principle of the Rio
Declaration separately. However, it is understood that all of the principles
are interlinked and of an interdependent nature, and that the Rio Declaration
represents a carefully negotiated package.
Principle 1
Human beings are at the centre of concerns for sustainable development. They
are entitled to a healthy and productive life in harmony with nature.
International developments
16. Principle 1 emphasizes the conviction of States that human beings are at
the centre of environment and development and reflects, thus, an
anthropocentric approach. Principle 1 reflects the fundamental human right to
a life with dignity. All other principles of the Rio Declaration are
construed so as to give effect to this principle. Principle 1 is also
concerned with human health, an aspect elaborated in chapter 6 of Agenda 21,
paragraph 1 of which states "health and development are intimately
interconnected ... Agenda 21 must address the primary health needs of the
world's population, since they are integral to the achievement of the goals of
sustainable development and primary environmental care". Paragraph 6.40
states "The overall objective is to minimize hazards and maintain the
environment to a degree that human health and safety is not impaired or
endangered and yet encourage development to proceed."
17. The right to a healthy environment has been frequently referred to,
though often in non-legally binding instruments, and is often explicitly
guaranteed and proclaimed in human rights treaty law. Since 1992, principle 1
has been recognized in treaty law, sometimes with reference to specific
sectors. Examples are preambular paragraph 1 of the Desertification
Convention and the Fourth Lome' Convention which states that "cooperation
shall be directed towards development centres on man, the main protagonist and
beneficiary of development". 8/
18. The Programme of Action of the International Conference on Population
and Development contains 14 principles, hereinafter referred to as the 1994
Cairo Principles. 9/ Principle 2 states: "Human beings are at the centre of
concerns for sustainable development. They are entitled to a healthy and
productive life in harmony with nature. People are the most important and
valuable resource of any nation. Countries should ensure that all individuals
are given the opportunity to make the most of their potential. They have a
right to an adequate standard of living for themselves and their families,
including adequate food, clothing, water and sanitation." See also
paragraph 7 of the 1996 Istanbul Declaration on Human Settlements, hereinafter
referred to as the Istanbul Declaration. 10/
National implementation and examples
19. The right to a healthy and productive life in harmony with nature is
often found in constitutions and/or basic (environmental) laws, formulated as
a general principle of national environmental legislation. Almost all
constitutions adopted or revised in the past 35 years address environmental
concerns. 11/ Constitutional provisions in a great number of States explicitly
enunciate a right to a healthy environment. 12/ Correspondingly, almost all of
the constitutions provide both an obligation of the State to conserve, and a
duty of the citizens to protect, the environment. The constitutional
obligation on the part of the State to conserve the environment corroborates
the right to a healthy environment that is in some cases formulated in terms
of an individual's right to a healthy environment.
20. The Supreme Court of the Philippines decided that while the right to a
balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not
follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and
self-perpetuation [...] the advancement of which may even be said to predate
all Governments and constitutions. As a matter of fact, these basic rights
need not even be written in the Constitution for they are assumed to exist
from the inception of humankind. 13/
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.
International developments
21. Principle 2 comprises two elements which cannot be separated without
fundamentally changing their sense and effect: the sovereign right of States
to exploit their own natural resources; and 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, accepted
as law, 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, States have an obligation under international law (e.g., UNCLOS, part
V) to conserve and utilize their natural resources in a sustainable manner and
share underutilized resources with neighbouring and less advantaged States.
States also have an obligation to protect their environment and prevent damage
to neighbouring environments.
22. The Rio Declaration affirmed principle 21 of the Stockholm Declaration
with one addition: "and developmental". Principle 2 is reflected in, for
example, preambular paragraph 8 of the Convention on Climate Change,
preambular paragraph 15 of the Desertification Convention, and in the preamble
of the North American Agreement on Environmental Cooperation. 14/ Except for
the words "and developmental", principle 2 is reiterated in article 3 of the
Convention on Biological Diversity. Article 15.1 of that Convention
recognizes that States have sovereign rights over their natural resources and
that "the authority to determine access to genetic resources rests with the
national governments and is subject to national legislation". Principle 21 of
the Stockholm Declaration is also included in principle 1 (a) of the Forest
Principles, whose principle 2 (a) declares: "States have the sovereign and
inalienable right to utilize, manage and develop their forests in accordance
with their development needs and level of socio-economic development ...".
23. The exact scope and implications of principle 2 are not clearly
determined yet. Certainly not all instances of transboundary damage resulting
from activities within a State's territory can be prevented or are unlawful.
Further, there is a discernable tendency to impose duties on States with
respect of the management of their natural wealth and resources so as to
ensure sustainable production and consumption, in the interest of the peoples
of their own and other States and of humankind, including future generations.
There is an emerging recognition that problems are of international, if not
global, concern. This was expressed in the 1995 Agreement on Fish Stocks.
The International Court of Justice Advisory Opinion on the Legality of the
Threat and Use of Nuclear Weapons of 8 July 1996 confirms that principle 2
restates a rule of customary law, observing 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.
Principle 3
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.
International developments
24. The inclusion of principle 3 in the Rio Declaration represents the first
time that the right to development has been affirmed in an international
instrument adopted by consensus. 15/ The nature and the extent of the right
is left open, as is the question of whether such a right attaches to States,
peoples or individuals. Principle 3 may be read together with the ensuing
principle 4 to indicate that the right to development may include both
environmental and economic considerations.
25. The right to development might be perceived as a synthesis of existing
human rights, as the right to an adequate living, the highest attainable level
of health, education, housing, work and food. "Underlying the links between
the right to development and the right to the environment is the notion of the
indivisibility and interdependence of all human rights, whether civil or
political, economic, social or cultural. Moreover, it is impossible to
separate the claim to the right to a healthy and balanced environment from the
claim to the right to 'sustainable' development, which implies a concentration
of efforts to combat poverty and underdevelopment." "A development strategy
that does not take into account the human, social and cultural dimension could
have only adverse effects on the environment." 16/
26. After the adoption in 1986 of the Declaration on the Right to
Development, 17/ the World Conference on Human Rights adopted the Vienna
Declaration. 18/ In 1993 the General Assembly decided that the High
Commissioner for Human Rights shall recognize "the importance of promoting a
balanced and sustainable development for all people and of ensuring
realization of the right to development, as established in the Declaration on
the Right to Development". 19/ In November 1996, the first session of the
newly appointed intergovernmental Working Group of Experts on the Right to
Development was held.
27. Principle 3 of the 1994 Cairo Principles states: "The right to
development is a universal and inalienable right and an integral part of
fundamental human rights ...". 9/ The Platform for Action of the Fourth World
Conference on Women, hereinafter referred to as the 1995 Beijing Platform for
Action, 20/ and the Copenhagen Declaration on Social Development, hereinafter
referred to as the 1995 Copenhagen Declaration, 21/ also include various
references to the right to development.
28. Besides the right to development, intergenerational equity is also
addressed by principle 3. This is directed at assuring the availability of
multiple development options for future generations. For example, the
1996 Istanbul Declaration states, in paragraph 10: "In order to sustain our
global environment ... we commit ourselves to ... the preservation of
opportunities for future generations ...". The Framework Convention on
Climate Change refers in article 3.1 to intergenerational equity, as does the
last preambular paragraph of the Convention on Biological Diversity.
National implementation and examples
29. On the national level the right to development relating to the rights of
future generations is occasionally found in programmatic provisions in
constitutions and basic (environmental) laws. For example, the Constitution
of Uganda, adopted 27 September 1995, stipulates that the utilization of the
natural resources of Uganda shall be managed in such a way as to meet the
development and environmental needs of present and future generations of
Ugandans ...". 22/ In Belgium, the introductory considerations of the Royal
Decision of 12 October 1993, which established the National Council for
Sustainable Development, refer explicitly to the Rio Declaration. Article 1
of the Royal Decree, defining sustainable development, declares that today's
development shall not take away from the future generations the chance to
supply their own needs.
30. In a few court cases before national courts, reference has been made to
the right of future generations. The Supreme Court of the Republic of the
Philippines decided, in the Minors Oposa case, that the petitioners could file
a class suit, for others of their generation and for the succeeding
generations. 13/ The Court, considering the concept of intergenerational
responsibility, further stated that every generation has a responsibility to
the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology.
Principle 4
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.
International developments
31. Principle 4 reflects the emphasis on integration, interrelation and
interdependence of environment and development, which form the backbone of
sustainable development. It reflects the interdependence of the social,
economic, environmental and human rights aspects of life that define
sustainable development. The principle demonstrates a commitment to moving
environmental considerations and objectives from the periphery of
international relations to its economic core.
32. Environmental considerations are increasingly a feature of international
economic policy and law. There are numerous regional and global treaties
supporting an approach which integrates environment and development, such as
the Convention on Biological Diversity and the Desertification Convention. 23/
Paragraph 6 of the 1995 Copenhagen Declaration provides 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".
National implementation and examples
33. The integration of environmental concerns into national development
decision-making requires the consideration of environmental, social and
economic components in an integrated manner at all levels of national
legislation and administration. Some examples of domestic legislation contain
references to or are based on an holistic approach, as anticipated in
principle 4 -
for instance, the Environment Management Bill of Malawi, adopted in
June 1996, the Law on Sustainable Development of Estonia, passed in early
1995, and the draft environmental protection act of Nepal, which is currently
under consideration by the Parliament.
34. The principle of integration of environmental matters into all policy
areas is usually formulated as a procedural rule to be applied by legislative
and administrative bodies. Therefore it is also a fundamental postulate of
most of the national strategies for sustainable development and of some
development plans.
35. In the White Oak Statement of 22 February 1993, ministers of environment
and environmental officials from 21 new democracies in Central and Eastern
Europe and the former Soviet Union recognized that environmental factors must
be integrated into the fabric of economic decision-making at all levels in
support of a programme of sustainable development. 24/
Principle 5
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.
International developments
36. At the World Summit for Social Development, 117 Heads of State agreed to
an integrated approach to poverty eradication, based on the concept of
partnership within societies and between developed and developing countries.
The Copenhagen Declaration and Programme of Action embody commitments and
measures at both the national and international level to stimulate growth,
trade, and full, productive and freely chosen employment, to improve health,
community and education systems, and to ensure that official development
assistance goes where it is needed most: to meeting basic human needs in the
world's poorest countries. The Declaration includes a commitment to the goal
of eradicating poverty in the world, through decisive national actions and
international cooperation, as an ethical, social, political and economic
imperative of humankind.
37. Chapter 3 of Agenda 21 is dedicated to combating poverty. References to
the eradication of poverty are also made in the other instruments adopted at
the Conference: preambular paragraph 19 and article 20 (4) of the Convention
on Biological Diversity; article 4.7 of the Convention on Climate Change; and
principle 7 of the Forest Principles. Further, preambular paragraph 8 and
article 4.2 (c) of the Desertification Convention make reference to poverty.
The Convention seeks to combine the alleviation of poverty with the
restoration of an agro-ecological balance, thus creating the potential for
direct and early benefits to people living in the world's drylands. Another
example is the Washington Declaration on Protection of the Marine Environment
from Land-based Activities, hereinafter referred to as the Washington
Declaration, 25/ which states that the alleviation of poverty is an essential
factor in addressing the impacts of land-based activities on coastal and
marine areas. The 1995 Beijing Platform for Action recognizes the persistent
and increasing burden of poverty on women as a critical area of concern and
emphasizes the "feminization of poverty"; 26/ the World Food Summit Plan of
Action states that poverty eradication is essential if access to food is to be
improved.
National implementation and examples
38. The principle of eradication of poverty can be implemented in various
sectors of national legislation - e.g., laws regarding employment creation and
land-use planning, labour laws, social security and health care laws, and
regulations concerning education. In only a few provisions is explicit
reference to the principle of eradication of poverty made.
39. States can use different approaches to combating poverty through their
national legislation. By way of illustration, in Myanmar, the Forest Law of
November 1992 stipulates that the Law shall be implemented in accordance with
the following basic principles: ... (d) To develop the economy of the State,
to contribute towards the food, clothing and shelter needs of the public and
for the perpetual enjoyment of benefits by conservation and protection of
forests. 27/
Principle 6
The special situation and needs of developing countries, particularly the
least developed and those most environmentally vulnerable, shall be given
special priority. International actions in the field of environment and
development should also address the interests and needs of all countries.
International developments
40. The special situation and needs of developing countries are in some
respects elaborated in other principles of the Rio Declaration, since the
special situation and needs of developing countries may lead to differentiated
responsibilities (principle 7) and to financial and technical assistance
(principles 9 and 11). The principle of the special treatment of developing
countries finds its elaboration in the idea of global partnership and in the
recognition of differentiated responsibilities among countries. Their
distinct position necessitates the transfer of technology and financial
resources to them and the strengthening of capacity-building within them.
There is a trend in treaties in the field of sustainable development to make
provision for a flow of financial resources from industrialized countries to
developing countries with a view to enabling them to fulfil their obligations
under such agreements.
41. The Convention on Climate Change refers in article 3.2 to the "specific
needs and special circumstances" of developing countries, and article 3.4
states that "policies and measures ... should be appropriate for the specific
conditions of each Party and should be integrated with national development
programmes". 28/ The Convention on Biological Diversity, in article 20.5,
states that "(t)he Parties shall take full account of the specific needs and
special situation of least developed countries in their actions with regard to
funding and transfer of technology". 29/ Under both the Conventions,
implementation in developing countries is contingent upon the fulfilment on
the part of industrialized countries of their obligations relating to
financial resources and technology transfer.
42. UNCLOS recognizes in its preamble the special interests and needs of
developing countries. The Desertification Convention includes relevant
references in its preamble and articles 3 (d), 5 and 6 and emphasizes
throughout the special situation of developing countries, given their high
concentration - notably, the least developed - among those experiencing
serious drought and/or desertification. Part VII of the 1995 Agreement on
Fish Stocks is devoted to the special requirements of developing States in
relation to the conservation and management of the fish stocks concerned, and
article 26 envisages the establishment of special funds to assist developing
States in its implementation.
43. The 1995 Washington Declaration refers to "countries in need of
assistance" (para. 4), a group which comprises the least developed countries,
countries with economies in transition and small island developing States.
Principle 9 (a) of the Forest Principles also refers to developing countries.
Principle 7
States shall cooperate in a spirit of global partnership to conserve, protect
and restore the health and integrity of the Earth's 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 they
command.
International developments
44. Principle 7 can be divided into two parts: the duty to cooperate in a
spirit of global partnership; and common but differentiated responsibilities.
The first is well-established, as exemplified in chapter IX of the Charter of
the United Nations, and applies on the global, regional and bilateral levels.
The goal of the Rio Declaration is, according to its preamble, the
establishment of a "new and equitable global partnership". The principle of
global partnership can be seen as a more recent reformulation of the
obligation to cooperate, and is becoming increasingly important. 30/
Principle 7 refers to States, but the principle of global partnership may also
be extended to non-State entities. The notion of common concern of humankind
recognizes the legitimate interest of the international community to concern
itself with certain issues and values which, by their nature, affect the
community as a whole. 31/
45. Principle 7 also speaks of common but differentiated responsibilities.32/
This element is intended to promote a sense of partnership between
industrialized and developing countries in dealing with environmental issues.
There is the need to take account of differing circumstances, particularly in
each State's contribution to the creation of environmental problems and its
ability to prevent, reduce and control them. Because of these different
contributions, States have common but differentiated responsibilities. States
whose societies impose a disproportionate pressure on the global environment
and which command high levels of technological and financial resources bear a
proportionally higher degree of responsibility in the international pursuit of
sustainable development.
46. Differentiated responsibilities may result in different legal
obligations. In practical terms, the principle 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 groups of countries, to encourage universal
participation. The developed countries acknowledge their responsibility
because of the pressure on the global environment, and because of the
technologies and financial resources they command. 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.
47. In article 4.1 the Convention on Climate Change 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 [art. 4.2 (a)(b)] and
guidance provided on the issue by its Conference of the Parties are also of
relevance. The Convention on Biological Diversity has made the implementation
of obligations undertaken by developing countries dependent 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. The principle is endorsed in the preamble of the Convention and is
implicitly reflected in various other provisions to safeguard the special
interests and circumstances of developing countries. 33/
48. The Desertification Convention contains specific obligations for
affected country parties (art. 5) and recognizes additional responsibilities
for developed country parties (art. 6). Article 26 of the 1996 Protocol to
the Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, 1972, hereinafter referred to as the 1996 Protocol to the London
Dumping Convention, 34/ 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 APC-EEC Convention of Lome'. 35/
49. The notion of common but differentiated responsibilities is referred to
in the implementation of Agenda 21, 36/ and has also been affirmed in the
major international conferences since Rio. For example, in paragraph 28, the
1995 Copenhagen Declaration recognizes "... that the formulation and
implementation of strategies, policies, programmes and actions for social
development are the responsibility of each country and should take into
account the economic, social and environmental diversity of conditions in each
country ...".
National implementation and examples
50. The principle of common but differentiated responsibility has not been
reflected, per se, in national legislation, as far as can be determined.
However, it is often reflected in national policies on international
cooperation and on foreign aid. 37/
Principle 8
To achieve sustainable development and a higher quality of life for all
people, States should reduce and eliminate unsustainable patterns of
production and consumption and promote appropriate demographic policies.
International developments
51. Principle 8 embodies two fundamental requirements in order to achieve
sustainable development. It reaffirms principle 1, by stating that the
ultimate goal is a higher quality of life for all people; there is also a
relationship with principle 7. Principle 8 represents an area where the
concept of common but differentiated responsibilities is clearly applicable,
since unsustainable production and consumption patterns are generally found in
developed countries, while in contrast, developing countries tend to have a
greater rate of increase in population levels.
52. Principle 8 reflects this balanced approach. Regarding consumption and
production patterns, progress has been achieved mainly at the national
level. 38/ At the international level, the issue can be linked with energy use
and emissions, water, food, forest products, waste, etc. 39/ The reduction and
elimination of unsustainable production and consumption patterns has been
reaffirmed in, inter alia, paragraph 10 of the 1996 Istanbul Declaration.
53. Appropriate demographic policies are considered to be the individual
goal of each State. The Programme of Action of the International Conference
on Population and Development is the most important document illustrating
international developments on demographic policies. Its principle 6 states
"Sustainable development as a means to ensure human well-being, equitably
shared by all people today and in the future, requires that the
interrelationships between population, resources, the environment and
development should be fully recognized, properly managed and brought into
harmonious, dynamic balance. To achieve sustainable development and a higher
quality of life for all people, States should reduce and eliminate
unsustainable patterns of production and consumption and promote appropriate
policies, including population-related policies, in order to meet the needs of
current generations without compromising the ability of future generations to
meet their own needs."
National implementation and examples
54. States have taken various legislative measures to implement the
principle of changing production and consumption patterns. Some States have
adopted laws and regulations which contain regulatory, economic (cf. principle
16) and social instruments and provide for, inter alia, environmental
taxation, including differentiated energy taxes, eco-labelling, eco-audit
procedures, 40/ product charges and pollution fines, emission standards and
emission trading schemes, recycling regulations, and the use of environmental
management systems. 41/
55. The assessment of environmental implications of existing tax and
incentive schemes is crucial, in particular the review of economic sectoral
policies to ensure that subsidies do not support unsustainable patterns of
consumption and production. Recently, Germany adopted a so-called "eco-cycle
law", 42/ which integrates product responsibility into economic
decision-making and aims at the avoidance of waste at producer, dealer and
consumer levels.
Principle 9
States should cooperate to strengthen endogenous capacity-building for
sustainable development by improving scientific understanding through
exchanges of scientific and technological knowledge, and by enhancing the
development, adaptation, diffusion and transfer of technologies, including new
innovative technologies.
International developments
56. Principle 9 is elaborated through, inter alia, provisions in
international legal instruments on the exchange of information and knowledge
and through transfer of technology. The general obligation to exchange
information is found, in one form or another, in many international
agreements, especially those in the field of the environment. The sometimes
limited effectiveness of general obligations on information exchange is due in
large part to the reluctance of States to share information which might have
commercial value and the obligation to ensure respect for intellectual
property rights. In recent years several international legal instruments have
established detailed rules on the type of information to be exchanged. An
innovative approach to information exchange is included in article 4.1 (h) of
the Convention on Climate Change and article 17 of the Convention on
Biological Diversity. The 1995 Agreement on Fish Stocks sets out in its annex
I standard requirements for the collection and sharing of data concerning
fisheries activities. It provides that the confidentiality of non-aggregated
data should be maintained.
57. Regarding the transfer of technologies, 43/ it is left to specific treaty
arrangements to translate the objectives into the actual transfer, and
sometimes development, of technology. See, for example, article 13 of the
1996 Protocol to the London Dumping Convention, on technical cooperation and
assistance to those countries that request it. Article 14, on scientific and
technical research, states in paragraph 2 that Contracting Parties shall
promote the availability of relevant information to other Contracting Parties
who request it. The Convention on Biological Diversity in its article 16
defines that access to and transfer of technology, including biotechnology,
are "essential elements for the attainment of the objectives" of the
Convention. The terms of technology transfer have been defined in such a way
as to secure not only the conservation of biological diversity but also
sustainable development interests, particularly those of developing countries.
See further article 4.5 of the Convention on Climate Change; paragraph 13 of
the 1996 Istanbul Declaration; and principle 11 of the Forest Principles.
National implementation and examples
58. At the national level, the promotion of the development and the use of
environmentally sound technologies can, inter alia, be achieved by regulations
which provide for incentive systems and funding of technological innovation in
the field of environmental technology 44/ or by providing relevant information
and know-how. In the European Union, Council Directive 96/61/EC contains an
integrative concept for pollution prevention and control, introducing,
inter alia, a system of integrated permits which includes emission limit
values based on best available techniques. For the determination of those
techniques, the technological advances and changes in scientific knowledge and
understanding have to be taken into account, thus enhancing the development
and diffusion of new technologies. 45/
59. In several countries eco-funds and similar institutions have been
established to promote environmental investments and to finance projects
relevant for the enhancement of the environment, such as water infrastructure
projects. 46/
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 provided.
International developments
60. Principle 10 combines public participation with public access to
information and access to remedial procedures. According to Agenda 21, one of
the fundamental principles for the achievement of sustainable development is
broad public participation in decision-making. 47/ Both Agenda 21 and the Rio
Declaration emphasize the importance of the participation of all major groups,
and special emphasis has been given, including in legally binding
international instruments, to ensuring participation in decision-making of
those groups that are considered to be politically disadvantaged, such as
indigenous peoples 48/ and women. 49/ Principle 10 supports a role for
individuals in enforcing national environmental laws and obligations before
national courts and tribunals. 50/
61. The Convention on Climate Change obliges Parties to promote public
awareness and to encourage wide participation in the process, including that
of non-governmental organizations, though it does not create a public right of
access to information. 51/ The Desertification Convention recognizes, in
article 3 (a)(c), the need to associate civil society with the action of the
State. See also article 12 of the 1995 Agreement on Fish Stocks. 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 Convention on Biological Diversity allows
for public participation in environmental impact assessment procedures in
article 14.1 (a); its article 13 addresses the need for public education and
awareness.
62. The Vienna Declaration places particular emphasis on participatory
democracy. See also principle 26 (m)-(o) of the 1995 Copenhagen Declaration.
Chapter 29 of Agenda 21 states that public participation also implies freedom
of association for workers and employers and democratization towards their
full involvement in decision-making on social and development issues. This
approach to labour and social issues is described in the ILO Constitution and
numerous ILO conventions. More generally, the independence of
non-governmental organizations was also recognized in paragraph 27.1 of Agenda
21 as a "precondition" of real participation.
63. International institutions must 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 as included in articles 14 and 15 of the
North American Agreement on Environmental Cooperation also provides
significant new rights for citizens to participate in monitoring domestic
enforcement of environmental laws. Non-governmental organizations should be
provided at least observer status in international institutions and treaties
and should be relied upon for expertise, information and other purposes. 52/
Work on a regional draft convention on public participation in environmental
decision-making is currently in progress within the Economic Commission for
Europe.
National implementation and examples
64. The principle of public participation is at the heart of implementation
of sustainable development at the national level. The effectiveness of
participation rights critically depends, first, on appropriate access to
relevant information, which is often permitted through a right to request
relevant data, primarily where environmental matters are concerned. Secondly,
it depends on access to judicial remedies and means of redress, mostly as
public interest litigation, either in the form of class actions or by standing
rights or rights of intervention.
65. In Colombia, for instance, Law 99 of 1993 regulates the participation of
citizens in exercising their environmental rights and in defending natural
resources. Any citizen may intervene in administrative proceedings on the
issuance, modification, or cancellation of permits and environmental licences.
Public hearings, the right to request information, court actions and
extrajudicial settlement for citizens are introduced. Additionally, citizens
can file suit to force government officers to comply with an environmental
law. 53/
66. 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.
In the Czech Republic, for example, the constitutional right to obtain
information about the state of the environment and the right to enforce this
and other environmentally related rights are implemented in various sectoral
laws, inter alia, through the Environmental Protection Act 1992, the Nature
and Landscape Protection Act 1992, the Clean Air Act 1991, and the
Environmental Impact Assessment Act, the latter providing the most thorough
procedure for public participation. 54/
Principle 11
States shall enact effective environment legislation. Environmental
standards, management objectives and priorities should reflect the
environmental and developmental context to which they apply. Standards
applied by some countries may be inappropriate and of unwarranted economic and
social cost to other countries, in particular developing countries.
International developments
67. Principle 11 is almost an exact rendering of preambular paragraph 10 of
the Convention on Climate Change and is reflected in UNCLOS. 55/ In most
cases, such enactment of national legislation must be no less effective than
agreed international rules and standards. Principle 11 underscores the fact
that, while international treaties are needed to address problems of global
magnitude in the international legal context, to achieve their objectives,
action must take place at the national level. The principle emphasizes the
duty of States to implement at the national level the international
obligations they have accepted in the field of the environment.
National implementation and examples
68. In most States, new environmental laws have been adopted or existing
regulations amended since the United Nations Conference on Environment and
Development. While the examples are too numerous to be listed in this report,
it can be noted that new legislation is established either in the form of
environmental framework laws, providing a rather general approach for
environmental protection 56/ and/or in the form of sectoral laws that deal
with specific environmental issues in detail 57/ and can specify provisions of
general environmental protection laws for certain aspects.
69. In order to assist the development of national environmental legislation
and institutions, capacity-building and financial support for developing
countries and countries with economies in transition are more than ever a
crucial and major concern. In recent years, reviews of existing or drafting
of new environmental legislation and the training of legal advisers and the
strengthening of institutions were carried out with support of various
international organizations in many States in all regions of the world.
Principle 12
States should cooperate to promote a supportive and open international
economic system that would lead to economic growth and sustainable development
in all countries, to better address the problems of environmental degradation.
Trade policy measures for environmental purposes should not constitute a means
of arbitrary or unjustifiable discrimination or a disguised restriction on
international trade. Unilateral actions to deal with environmental challenges
outside the jurisdiction of the importing country should be avoided.
Environmental measures addressing transboundary or global environmental
problems should, as far as possible, be based on an international consensus.
International developments
70. In general, there is a tendency to remove or avoid unilateral
environmental measures. However, while they are not specifically prohibited
by the Rio Declaration or Agenda 21, they are bounded by various criteria and
provisos. In spite of free market mandates, 58/ trade restrictions for
environmental purposes have at times been used to restrict markets for
environmentally hazardous products and for items produced unsustainably. 59/
Besides principle 12, three other instruments adopted at the United Nations
Conference on Environment and Development contain provisions related to the
possible permissibility of unilateral environmental measures. The most
detailed is the consensus language in paragraph 39.3 (d) of Agenda 21.
Further, the Convention on Climate Change states, in article 3.5, that
measures to combat climate change, including unilateral ones, should not
constitute a means of arbitrary or unjustifiable discrimination or disguised
restriction on international trade. Similar statements are found in
principles 13 and 14 of the Forest Principles.
71. The extraterritorial application of national environmental laws is
particularly controversial in relation to trade issues. The subject of the
relationship between the provisions of the multilateral trading system and
trade measures for environmental purposes, including those pursuant to
multilateral environmental agreements, has been under consideration for a
number of years, notably within the context of GATT and the World Trade
Organization (WTO). Currently, WTO's Committee on Trade and Environment is
seized of the matter. It prepared a report to the first biennial meeting of
the WTO Ministerial Conference (Singapore, December 1996). 60/
Principle 13
States shall develop national law regarding liability and compensation for the
victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop further
international law regarding liability and compensation for adverse effects of
environmental damage caused by activities within their jurisdiction or control
to areas beyond their jurisdiction.
International developments
72. International law remains inconclusive as to the standard of care to be
observed in fulfilling international environmental obligations. Regarding
State liability, developments have been limited since 1992. The question of
international liability for the injurious consequences of acts not prohibited
under international law is among the subjects under discussion in the
International Law Commission (ILC) 61/ and the General Assembly. There the
opinion is expressed that environmental dangers to which humanity is exposed
as a result of activities not prohibited by international law made it
necessary to develop commonly accepted legal rules on that matter. A Working
Group established at the 1996 session of ILC adopted a set of 22 draft
articles on international liability which ILC submitted to the General
Assembly for comments.
73. There are several international legal instruments recently negotiated or
currently under negotiation. The Council of Europe Convention on Civil
Liability for Damage Resulting from Activities Dangerous to the Environment,
62/ a regional instrument with a limited number of signatories, deals with
civil liability for environmental damage, including the provision of national
legal remedies. The 1996 Protocol to the London Dumping Convention states, in
article 15: "In accordance with the principles of international law regarding
State responsibility for damage to the environment of other States or to any
other area of the environment, the Contracting Parties undertake to develop
procedures regarding liability arising from the dumping or incineration at sea
of wastes or other matter." Article 14 (2) of the Convention on Biological
Diversity provides that: "The Conference of the Parties shall examine, on the
basis of studies to be carried out, the issue of liability and redress,
including restoration and compensation, for damage to biological diversity,
except where such liability is a purely internal matter."
74. The International Conference on Hazardous and Noxious Substances and
Limitation of Liability, convened by the International Maritime Organization,
adopted in May 1996 the International Convention on Liability and Compensation
for Damage in Connection with the Carriage of Hazardous and Noxious Substances
by Sea. The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal 63/ envisages elaboration of a liability
protocol. Some specific areas under current consideration in international
forums are liability and compensation for environmental damage resulting from
military activities (within the United Nations Compensation Committee) and
safe management of transboundary movements of hazardous wastes.
National implementation and examples
75. Principle 13 is reflected in general liability provisions and in
stipulations for specific environmental liability. In the past five years
some countries included liability regulations in environmental legislation -
for example, Lithuania, in the Land Act of 1994, which provides for liability,
including criminal liability, of land-users for damage to the environment. 64/
In Chile a constructive liability for any environmental damage caused as a
result of a breach of environmental quality standards, emission standards or
general rules governing the protection, preservation or conservation of the
environment has been adopted. 65/ The Finnish Act on Compensation for
Environmental Damage 1994 applies to damage caused, inter alia, by pollution
of soil, water, air, noise, and radiation. 66/
76. National courts occasionally confirm environmental liability. However,
in most cases the decision is based on general liability rules - for instance,
on common-law tort actions. The Indian Environmental Tribunal Act established
a tribunal and enacted rules on compensation for death of, or injury to, a
person and damage to property and environment. 67/
Principle 14
States should effectively cooperate to discourage or prevent the relocation
and transfer to other States of any activities and substances that cause
severe environmental degradation or are found to be harmful to human health.
International developments
77. Principle 14 addresses the danger that substances and activities with
potential to harm human health and the environment may be transferred or
relocated to another State. In a context where it is thought that economic
incentives favour relocation or transference to States without adequate
protection, the principle establishes a norm of international cooperation to
discourage or to prevent such relocation or transference and to ensure that
any relocation or transference is environmentally safe and done with prior
informed consent. At a minimum, the principle requires prior informed consent
of the importing State or State of relocation and imposes a duty on the
originating State to ensure that the State to which the hazardous activity or
substance is to be transferred has the appropriate capacity to minimize the
risks. As a principle of cooperation, it further requires that if a State
chooses to ban or restrict the importation of hazardous substances or the
translocation of hazardous activities, the ban or restriction should be
respected by other States.
78. Those international instruments that treat the non-transference of
hazardous activities are often voluntary codes of conduct addressed directly
to private parties, such as multinational corporations, and not standards of
conduct for States. However, principle 14 is included in article 1114 of the
1992 North American Free Trade Agreement, and the duty to non-transference
also underlies a number of pre-Conference instruments, such as article 195 of
UNCLOS; the Basel Convention; and the Convention on the Ban of the Import into
Africa and the Control of Transboundary Movement and Management of Hazardous
Wastes within Africa, hereinafter referred to as the Bamako Convention. 68/
Further, principle 14 is implied in the FAO International Code of Conduct on
the Distribution and Use of Pesticides and in the London Guidelines for the
Exchange of Information on Chemicals in International Trade (UNEP/GC.14/17,
annex IV).
National implementation and examples
79. The principle of transboundary cooperation is embodied in the
legislation of certain countries, in particular regulations relating to the
transfer of hazardous substances or dangerous activities. 69/ Some countries
have laws prohibiting the import of toxic and hazardous substances (e.g.,
Nicaragua and Romania) whereas others, for instance, the United States, ban
the export of toxic and hazardous materials. Another approach was taken by
Poland and the Ukraine which concluded a bilateral agreement banning any
export and import of hazardous waste from and to each other. 70/
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.
International developments
80. Principle 15 codified for the first time at the global level the
precautionary approach, which indicates that lack of scientific certainty is
no reason to postpone action to avoid potentially serious or irreversible harm
to the environment. Central to principle 15 is the element of anticipation,
reflecting a requirement that effective environmental measures need to be
based upon actions which take a long-term approach and which might anticipate
changes on the basis of scientific knowledge.
81. Incorporation of the precautionary approach can be found in various
international legal instruments. For example, 71/ 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 the 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 the ninth
preambular paragraph of the Convention on Biological Diversity; in article 3.3
of the Convention on Climate Change; and in annex II, article 3 (3) (c), of
the Convention for the Protection of the Marine Environment of the North-East
Atlantic. 72/ The 1996 Protocol to the London Dumping Convention 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". In its second preambular
paragraph, the evolution within the London Convention towards approaches based
on precaution and prevention is noted. The precautionary principle is one of
the bases for community policy on the environment of the European Union. 73/
82. Several codes which include the precautionary approach have been
developed, inter alia, the 1994 Code of Practice on the Introduction and
Transfer of Marine Organisms, by the International Council for the Exploration
of the Seas; Guidelines for Preventing the Introduction of Unwanted Aquatic
Organisms and Pathogens from Ships' Ballast Water and Sediment Discharges, by
IMO; and FAO's Guidelines on the Precautionary Approach to Capture Fisheries
and Species Introduction. 74/
83. The precautionary principle has been invoked before the International
Court of Justice. 75/ 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.
National implementation and examples
84. The precautionary approach is widely accepted as a fundamental concept
of national environmental laws and regulations in order to protect the
environment. 76/ It is elaborated, for instance, in the Water Law and Planning
Law of Israel, 77/ in the Environmental Protection Act of the Czech Republic,
54/ and is included in numerous draft environmental laws currently under
consideration - for example in the Pakistan draft environmental protection act
of 1996.
85. The precautionary approach is also increasingly applied in court
decisions - for example, in a decision of the Land and Environment Court of
New South Wales, Australia, in which the Court stated that although there had
been express references to what is called the "precautionary principle" since
the 1970s, international endorsement had occurred only in recent years.
Indeed, the principle had been referred to in almost every recent
international environmental agreement. As a result, the Court upheld the
appeal by the applicant and refused a license. 78/ A number of cases have been
built on and approved this decision since. 79/
86. In 1994, the Supreme Court of Pakistan quoted principle 15, holding that
it seemed reasonable to take preventive measures straight away instead of
maintaining the status quo because there was no conclusive finding on the
effect of electromagnetic fields on human life. 80/
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.
International developments
87. Principle 16 on internalization of costs includes what has become known
as the "polluter pays" principle. According to it, it is important for the
environmental costs of economic activities, including the cost of preventing
potential harm, to be internalized rather than imposed upon society at large.
It was developed by the Organisation for Economic Cooperation and Development
(OECD) in the 1970s 81/ in an effort to ensure that companies paid the full
costs of controlling pollution and were not subsidized by the State. It was
meant to apply within a State, and not between States. As a goal of domestic
policy, it has been realized only partially in practice. Principle 16 brings
the polluter pays approach outside of a strictly developed country context.
Further, it is closely related to the international trade regime.
88. Since 1972, the polluter pays principle has gained increasing
acceptance. Some recent international instruments that include it are: the
Pan-European Biological and Landscape Diversity Strategy (1995), which avers
that the cost of measures to prevent, control and reduce damage shall be borne
by the responsible party, as far as possible and appropriate; and the 1996
Protocol to the London Dumping Convention, which states that the polluter
should, in principle, bear the cost of pollution. The principle has also been
reiterated by the Commission on several occasions. 82/
National implementation and examples
89. The use of economic instruments in the context of environmental
protection has notably gained more attention in national legislation. While
developed countries have implemented various economic instruments for several
years, developing countries and countries with economies in transition are
beginning to incorporate economic instruments into their national legislation.
Among economic instruments used in national laws and regulations are
deposit/refund schemes, pollution fines, eco-management systems, and
eco-labelling systems. 83/ In order to complement environmental regulations,
voluntary agreements between industry and government have been negotiated in
several developed countries.
90. The polluter pays principle is a guiding concept for many legislators
for designing effective national environmental laws and regulations. Since it
was introduced in environmental policies in the late 1960s, it has been
implemented by various means, ranging from pollution charges, process and
product standards, to systems of fines and liabilities. In most States, the
polluter pays principle is established as a direct obligation for citizens and
companies included in general environmental protection regulations which are
specified by provisions in sectoral laws. 84/
Principle 17
Environmental impact assessment, as a national instrument, shall be undertaken
for proposed activities that are likely to have a significant adverse impact
on the environment and are subject to a decision of a competent national
authority.
International developments
91. Principle 17 refers to environmental impact assessment (EIA) explicitly
at the national level. On the international level some noteworthy
developments have taken place. Various regional conventions reflect the
obligation to undertake transboundary environmental impact assessments. For
example, the 1991 United Nations/ECE Convention on Environmental Impact
Assessment in a Transboundary Context 85/ is specifically recognized in, for
example, the Final Declaration of the Ministerial Meeting of the Oslo and
Paris Commissions for the Prevention of Marine Pollution (September 1992), the
Ministerial Declaration on Cooperation in the Barents Euro-Arctic Region
(January 1993) and the Nuuk Declaration on Environment and Development in the
Arctic (September 1993). 86/ The Convention specifies the duties of Parties
with regard to the transboundary impact of proposed activities and procedures
for their implementation, and it provides procedures, in a transboundary
context, for the consideration of environmental impacts in decision-making
procedures.
92. As a national instrument, article 14 of the Convention on Biological
Diversity requires parties "as far as possible and as appropriate" to
"introduce appropriate procedures" requiring environmental impact assessment
of proposed projects that are "likely to have significant adverse effects on
biological diversity". The Pan-European Biological and Landscape Diversity
Strategy (1995) includes the principle of avoidance, which is defined as the
introduction of appropriate procedures requiring environmental impact
assessment of projects that are likely to have significant adverse effects on
biological and landscape diversity, with a view to avoiding such effects and,
where appropriate, allow for public participation in such procedures.
93. Judge Weeramantry, in his opinion dissenting from the Order of the
International Court of Justice of 22 September 1995, stated that the principle
of environmental impact assessment was gathering strength and international
acceptance and had reached a level of general recognition such that the Court
should take notice of it.
National implementation and examples
94. Environmental impact assessment (EIA) has probably become the most
effective and practical tool to support the implementation of sustainable
development. Since it was introduced in the United States more than 25 years
ago, 87/ over 70 per cent of the countries have adopted its informal
guidelines or mandatory regulations, applicable not only to public projects
but 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 regarding projects and other activities.
95. Some of the numerous examples of recently adopted national laws
providing for environmental impact assessment procedures are the Environment
Code of Burkina Faso, 88/ the Environment Protection Act of the Seychelles,
89/ and the Finnish Act on Environmental Impact Assessment Procedure. 90/
Further, in several countries, the judiciary had to deal with EIA procedures.
In some cases, courts rejected permits for projects because either no EIA was
undertaken or it proved to be inadequate. In a decision regarding the
construction of a dam, the Canadian Supreme Court stated that the scope of an
environmental assessment also has to take into account the environmental
effects of the construction beyond the borders of Canada. 91/
Principle 18
States shall immediately notify other States of any natural disasters or other
emergencies that are likely to produce sudden harmful effects on the
environment of those States. Every effort shall be made by the international
community to help States so affected.
International developments
96. Emergency notification allows affected parties the greatest possible
opportunity to prepare for and mitigate potential damage. Emergency
notification provisions are critical components of international approaches
to, inter alia, oil spills, industrial accidents, and nuclear accidents. See,
for example, articles 198 and 199 of UNCLOS and article 14 (c) of the
Convention on Biological Diversity. Article 8 of the 1996 Protocol to the
London Dumping Convention states that a Contracting Party may issue a permit
for certain exceptional cases, "in emergencies posing an unacceptable threat
to human health, safety, or the marine environment and admitting of no other
feasible solution. Before doing so the Contracting Party shall consult any
other country or countries that are likely to be affected ...". The
Conventions on Early Notification of a Nuclear Accident and on Assistance in
the Case of a Nuclear Accident or Radiological Emergency, both adopted in
1986, have increased the number of their Parties - to 76 and 72, respectively.
National implementation and examples
97. The principle of emergency notification is embodied in some national
laws, most of which implement international conventions as noted above. In
March 1993, Belgium, Germany, Luxembourg, and the Netherlands agreed on a
uniform system for information exchange and warning procedures with regard to
high-level concentrations of ozone. 92/
Principle 19
States shall provide prior and timely notification and relevant information to
potentially affected States on activities that may have a significant adverse
transboundary environmental effect and shall consult with those States at an
early stage and in good faith.
International developments
98. States planning to conduct activities that may harm the environment or
natural resources of another State should enter into good faith consultations
over a reasonable time in an effort to minimize the transboundary
environmental impacts. Consultation implies at least an opportunity to review
and discuss a planned activity that may potentially cause damage.
Increasingly, consultation is being institutionalized at the international
level, either through existing international bodies, such as the Nordic
Council, the European Council and the United Nations system, or through new
institutions created in the framework of specific environmental conventions.
99. For example, article 14 (d) of the Convention on Biological Diversity
and articles 7-10 of the Convention on Climate Change outline the consulting
and decision-making authority of the Conference of the Parties of each
Convention and establish various subsidiary bodies with advisory functions.
Such institutions are critical for building confidence over the long term and
for providing a mechanism for discussing and resolving potential disputes in
the field of sustainable development. The Convention on Nuclear Safety 93/
states in article 16.2 that each Contracting Party shall take the appropriate
steps to ensure that, insofar as it is likely to be affected by a radiological
emergency, its own population and the competent authorities of the States in
the vicinity of the nuclear installation are provided with appropriate
information for emergency planning and response.
National implementation and examples
100. Reference to the principle of prior consultation can be found in a few
national laws and regulations. In Gambia, for example, the 1994 Act on
Hazardous Chemicals and Pesticides Control and Management contains a provision
that international notification schemes relating to chemicals and pesticides,
including the prior informed consent procedures, are to be implemented. 94/
Some other examples of national legal implementation of the principle of prior
consultation are directly linked to regulations regarding environmental impact
assessment procedures.
Principle 20
Women have a vital role in environmental management and development. Their
full participation is therefore essential to achieve sustainable development.
International developments
101. Section K of the 1995 Beijing Platform for Action is on women and the
environment. It addresses several principles of the Rio Declaration (e.g.,
principles 1 and 5), and contains three strategic objectives requiring action,
including the active involvement of women in environmental decision-making at
all levels. Paragraph 251 states that "Sustainable development will be an
elusive goal unless women's contribution to environmental management is
recognized and supported".
102. Since 1992, there has been a substantial increase in the number of
ratifications of the Convention on the Elimination of All Forms of
Discrimination against Women, which now has almost global acceptance (154
parties as of January 1997). However, the large number of reservations to the
Convention undermines its universal application.
103. In the Desertification Convention, preambular paragraph 20 stresses the
important role played by women in regions affected by desertification and/or
drought ... and the importance of ensuring the full participation of both men
and women at all levels in programmes to combat desertification and mitigate
effects of drought. Preambular paragraph 10 of the Convention on Biological
Diversity recognizes the vital role that women play in the conservation and
sustainable use of biological diversity and affirms the need for the full
participation of women at all levels of policy-making and implementation.
104. Principle 20 has been elaborated upon in chapter 24 of Agenda 21.
Paragraph 26 (o) of the 1995 Copenhagen Declaration recognized that
"empowering people, particularly women, to strengthen their own capacities is
a main objective of development and its principal resource. Empowerment
requires the full participation of people in the formulation, implementation
and evaluation of decisions ...". 95/ Paragraph 18 of the Vienna Declaration,
adopted by the World Conference on Human Rights, states that the full and
equal participation of women in political, civil, economic, social and
cultural life, are priority objectives of the international community. 96/
National implementation and examples
105. Principle 20 is mostly implemented through civil rights laws and related
laws which in some instances provide for legal redress. Reference to the
principle is made in almost all constitutions.
106. The principle of the integration of women into decision-making processes
for sustainable development can be found in only a few legislative documents
on the national level. However, it is reflected in general provisions
regarding participation in decision-making processes and in many national and
sub-national development plans.
Principle 21
The creativity, ideals and courage of the youth of the world should be
mobilized to forge a global partnership in order to achieve sustainable
development and ensure a better future for all.
International developments
107. In the international legal field, developments regarding principle 21
are mainly aimed at the protection of youth and children, rather than enabling
mobilization to forge a global partnership. The most important document in
this respect is the Convention on the Rights of the Child. 97/ On 29 and
30 September 1990, the World Summit for Children took place. The 1996
Secretary-General's report on progress at mid-decade on implementation of
General Assembly resolution 45/217 on the World Summit for Children (A/51/526)
states that the Convention represented a historic landmark in the
international rise of the children's cause. The Summit adopted the World
Declaration on the Survival, Protection and Development of Children and the
Plan of Action for its implementation, 98/ identifying seven major goals
relating to the survival, health, nutrition, education and protection of
children for fulfilment by the year 2000, and a further 20 supporting goals.
108. The Vienna Declaration urges universal ratification and effective
implementation of the Convention on the Rights of the Child and also states
that in all actions concerning children, the views of the child should be
given due weight. In paragraph 7 of the 1996 Istanbul Declaration, States
agree to ensure the effective participation of youth in political, economic
and social life.
National implementation and examples
109. Principle 21 is mostly implemented through civil rights laws. Reference
to the principle is made in almost all constitutions.
Principle 22
Indigenous people and their communities and other local communities have a
vital role in environmental management and development because of their
knowledge and traditional practices. States should recognize and duly support
their identity, culture and interests and enable their effective participation
in the achievement of sustainable development.
International developments
110. Indigenous peoples have unique cultures based on natural resources which
have integrated various aspects of sustainability. Evolving standards in
international law require the recognition of the integrated rights of
indigenous peoples - for example, human rights, land and resource rights,
intellectual and cultural property rights and rights to manage the environment
and natural resources. The International Labour Organization has adopted
various conventions and resolutions on indigenous matters. Principle 22 finds
its further elaboration in chapter 26 of Agenda 21.
111. The vital role of indigenous people is recognized in the preambular
paragraph 12 of the Convention on Biological Diversity, and is further
detailed in its articles 8 (j), 10 (c), and 17.2. Article 8 (j) states that
the Contracting Party 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". The 1995 Agreement on Fish Stocks requires States to take into
account in the establishment of conservation and management measures the need
to ensure access to fisheries by indigenous people of developing States,
particularly small island developing States.
112. The Nuuk Declaration on Environment and Development in the Arctic
States, in 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 achievement of sustainable development in
the Arctic". 86/ The Forest Principles contain various references to
recognition of traditional or indigenous rights. 99/
113. On 10 December 1992, the General Assembly declared 1993 the
International Year of the Indigenous Populations. The United Nations Working
Group on Indigenous Populations has prepared a draft universal declaration of
the rights of indigenous peoples. The Vienna Declaration, in paragraph 20,
reaffirms the commitment of the international community to the economic,
social and cultural rights of indigenous peoples and their enjoyment of the
fruits of sustainable development. It further declares that States should
ensure their full and free participation in all aspects of society and should
recognize their value and diversity. See also paragraph 26m of the 1995
Copenhagen Declaration.
National implementation and examples
114. The knowledge of local communities and the participation of indigenous
people in decision-making for sustainable development is crucial for the
protection of local ecosystems. Several national laws and regulations contain
provisions that acknowledge, for example, property rights which indigenous
people exercise over their land and waterways or which enable indigenous
people to take part in decision-making processes. 100/ Their involvement in
environmental impact assessment procedures is another form of participation in
decision-making for sustainable development.
115. Recognition and support for the identity, culture and interests of
indigenous people is regularly embodied in general provisions that are
embedded in national constitutions or general statements of environmental and
developmental policies. Moreover, some national sectoral regulations
acknowledge this principle. One example is the Principles of the Forest
Legislation of the Russian Federation 1993, which call for the elaboration of
specific forests regulations for areas important to indigenous people. 101/
Principle 23
The environment and natural resources of people under oppression, domination
and occupation shall be protected.
International developments
116. Principle 23 has been reiterated in several resolutions adopted by the
General Assembly - for example, resolutions 48/46, 48/47 and 49/40. The first
reaffirms in its sixth preambular paragraph "that the natural resources are
the heritage of the indigenous populations of the colonial and Non-Self-
Governing Territories". Resolution 50/129 reaffirms in paragraph 4 "the
inalienable right of the Palestinian people and the population of the occupied
Syrian Golan to their natural and all other economic resources, and regards
any infringement thereupon as illegal".
Principle 24
Warfare is inherently destructive of sustainable development. States shall
therefore respect international law providing protection for the environment
in times of armed conflict and cooperate in its further development, as
necessary.
International developments
117. Principle 24 can be read in conjunction with chapter 39, paragraph 6, of
Agenda 21, which states: "Measures in accordance with international law
should be considered to address, in times of armed conflict, large-scale
destruction of the environment that cannot be justified under international
law". Methods and means of warfare are not unlimited. Environmental
protection in times of armed conflict is difficult and complex, because
warfare is inherently harmful to the environment. As such, international
developments are focused on limiting rather than eliminating environmental
damage. Since 1992, various treaties related to warfare have been negotiated
and/or entered into force, most notably arms control treaties.
118. The Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and their Destruction 102/ aims to
ensure that means and methods of warfare which exceed the threshold of
permissible harm are not available to the combatants. The articles also refer
directly to the environment - for example, article IV.10: "Each State Party,
during transportation, sampling, storage and destruction of chemical weapons,
shall assign the highest priority to ensuring the safety of people and to
protecting the environment". 103/ See also Protocol II, revised in 1995, and
Additional Protocol IV of the Convention on Prohibitions or Restrictions on
the Use of Certain Conventional Weapons Which May Be Deemed To Be Excessively
Injurious or To Have Indiscriminate Effects. The comprehensive
nuclear-test-ban treaty, adopted by the General Assembly on 10 September 1996,
in its tenth preambular paragraph notes "the views expressed that this Treaty
could contribute to the protection of the environment ...". Other treaties
are currently under discussion. 104/
119. The International Committee of the Red Cross has been working for years
on the issue of armed conflict and the environment. It is developing
guidelines for military manuals and instructions on the protection of the
environment in times of armed conflict. Several of its provisions are found
in existing international customary or treaty law.
120. The International Court of Justice, in its 1996 advisory opinion on the
legality of the threat or use of nuclear weapons, was of the view that States
must take environmental considerations into account when assessing what is
necessary and proportionate in the pursuit of legitimate military objectives
and that respect for the environment is one of the elements to consider in
assessing whether an action is in conformity with the principles of necessity
and proportionality. The Court supported this approach, inter alia, by
quoting principle 24 of the Rio Declaration.
Principle 25
Peace, development and environmental protection are interdependent and
indivisible.
International developments
121. As recognized in the last preambular paragraph of the Rio Declaration,
the integral and interdependent nature of the Earth needs to be acknowledged.
Sustainable development is an integrative concept; the interdependency
stressed in principle 25 refers to the necessity of integration, which forms
the backbone of the concept of sustainable development. Integration is the
underlying theme of the Rio Declaration and Agenda 21, where it is explicitly
addressed in chapter 8.
122. The Charter of the United Nations is premised on the idea incorporated
in principle 25. Chapter IX of the Charter is devoted to international
economic and social cooperation, which should also include environmental
cooperation. Article 55 includes the pursuance of "development" among the
goals of international economic and social cooperation, and in Article 56,
States pledge themselves to promote development.
123. The interdependent approach is reiterated in the final documents of
major international conferences, such as the 1996 Istanbul Declaration, which
states in paragraph 3: "Recent United Nations world conferences, including,
in particular, the United Nations Conference on Environment and Development,
have given us a comprehensive agenda for the equitable attainment of peace,
justice and democracy built on economic development, social development and
environmental protection as interdependent and mutually reinforcing components
of sustainable development", and the 1995 Copenhagen Declaration.
Principle 26
States shall resolve all their environmental disputes peacefully and by
appropriate means in accordance with the Charter of the United Nations.
International developments
124. The general principle of peaceful settlement of disputes is one of the
fundamental principles enshrined in the Charter of the United Nations.
Regarding dispute settlement in the field of environment and development, 105/
a number of significant developments have taken place, including the decision
in 1993 of the International Court of Justice to create a Chamber for
Environmental Matters, established under article 26(1) of the Statute of the
Court.
125. Indeed, most environmental treaties stipulate that the parties involved
should first aim to resolve disputes through negotiation. If this is
unsuccessful, many treaties provide for further arrangements which may involve
the assistance of third parties. Some treaties provide that the dispute will
be submitted to either arbitration or the International Court of Justice, if
negotiations have proven unsuccessful. For example, the Convention on Climate
Change provides, in article 14.1: "In the event of a dispute between any two
or more Parties concerning the interpretation or application of the
Convention, the Parties concerned shall seek settlement of the dispute through
negotiation or any other peaceful means of their own choice". The Convention
on Biological Diversity states in article 27.1 that in the event of a dispute,
the parties concerned "shall seek solution by negotiation". Paragraph 2 of
the same article creates the possibility for parties, in case of non-agreement
by negotiation, to request mediation or seek the good offices of a third
party. See also part five of the North American Agreement on Environmental
Cooperation. 106/
126. Although in many of these cases the dispute settlement clauses are
optional, there is a growing trend towards compulsory dispute settlement.
Part XV of UNCLOS makes it obligatory for State Parties to settle their
disputes concerning the interpretation and application of the Convention by
peaceful means. Two recent international instruments have applied the dispute
settlement provisions of UNCLOS: part VIII of the 1995 Agreement on Fish
Stocks, and article 16 of the 1996 Protocol to the London Dumping Convention.
In both cases, the UNCLOS procedure is applied whether or not the Parties to
the Agreement or Protocol are also Parties to UNCLOS. In October 1996 the
International Tribunal for the Law of the Sea was inaugurated in Hamburg. The
Tribunal will be called upon to settle disputes arising out of interpretation
or application of UNCLOS. It has, through its Seabed Disputes Chamber,
exclusive jurisdiction over conflicts concerning the resources of the deep
seabed beyond the limits of national jurisdiction.
Principle 27
States and people shall cooperate in good faith and in a spirit of partnership
in the fulfilment of the principles embodied in this Declaration and in the
further development of international law in the field of sustainable
development.
International developments
127. Principle 27 reaffirms the basic components of the Rio Declaration. In
order to achieve sustainable development, States and people should cooperate
in the implementation of the principles and in the further development of
international law in the field of sustainable development. 107/ See also
preambular paragraph 3 of the Rio Declaration, which states as the overall
goal the establishment of a "new and equitable global partnership through the
creation of new levels of cooperation among States, key sectors of society and
people". See further chapter 1 of Agenda 21.
128. The concept of cooperation is adopted in other major declarations - for
example, in the 1996 Istanbul Declaration, paragraph 12: "We adopt the
enabling strategy and the principles of partnership and participation as the
most democratic and effective approach for the realization of our
commitments". International law in the field of sustainable development
reflects the balanced approach of the Rio Declaration and the other
instruments adopted at the United Nations Conference on Environment and
Development between environmental, economic and developmental law, and thus
between environmental protection and economic and social development.
Notes
References to International Legal Materials are cited as follows:
volume number, ILM, page number.
1/ 31 ILM 818.
2/ 31 ILM 848; A/AC.237/18 (Part II)/Add.1.
3/ Further, the Governing Council of UNEP is invited "to include in its
submission to the special session, information and views on ways to address in
a forward-looking manner, national, regional and international application of
these principles and the implementation of Agenda 21 in the interrelated
issues of the environment and development".
4/ Documents used extensively: "Report of the Expert Group Meeting on
Identification of Principles of International Law for Sustainable
Development", held in Geneva, Switzerland, 26-28 September 1995, organized by
the Department for Policy Coordination and Sustainable Development, United
Nations Secretariat, and submitted to the Commission at its fourth session as
background paper No. 3; Report of the International Environmental Conference
on Codifying the Rio Principles in National Legislation, The Hague, 22-24 May
1996, organized by the Netherlands Ministry of Housing, Spatial Planning and
the Environment (Publikatiereeks milieubeheer, No. 1996/4); "Compilation of
questionnaires, April 1996", distributed at the International Environmental
Conference on Codifying the Rio Principles in National Legislation. Also,
Draft International Covenant on Environment and Development, elaborated by the
Commission on Environmental Law of the IUCN/World Conservation Union, in
cooperation with the International Council of Environmental Law, and launched
at the United Nations Congress on Public International Law, New York, 13-17
March 1995; Final Report of the Expert Group Workshop on International
Environmental Law Aiming at Sustainable Development (UNEP/IEL/WS/3/2);
National Experiences on Codifying the Rio Principles in National Legislation
(Publikatiereeks milieubeheer No. 1996/2); Konrad Ginther, Erik Denters and
Paul J. I. M. de Waart, eds., Sustainable Development and Good Governance (The
Hague, Martinus Nijhoff, 1995). Philippe Sands, Principles of International
Environmental Law, vol. I, Frameworks, Standards and Implementation
(Manchester, Manchester University Press, 1995); and David A. Wirth, "The Rio
Declaration on Environment and Development: Two steps forward and one back,
or vice versa?" in Georgia Law Review, vol. 29 (1995), pp. 599-653.
5/ Entered into force on 26 December 1996. 33 ILM 1,332.
6/ See A/CONF.164/37.
7/ Entered into force on 16 November 1994. 21 ILM 1,261. Also, United
Nations publication, Sales No. E.83.V.5.
8/ As revised by the Agreement signed in Mauritius on 4 November 1995.
See The APC-EU Courier, No. 155 (January-February 1996).
9/ See A/CONF.171/13/Rev.1, chap. I, resolution 1, annex, chap. II.
10/ See A/CONF.165/14, chap. I, resolution 1, annex I.
11/ See E/CN.4/Sub.2/1994/9 of 6 July 1994.
12/ Recent examples are the Constitution of the Ukraine, adopted
28 June 1996; Constitution of South Africa, adopted 8 May 1996; Constitution
of Ethiopia, adopted 8 December 1994; Constitution of Argentina, adopted
23 August 1994.
13/ Supreme Court of the Philippines, Manila, 30 July 1993, Minors Oposa
vs. Secretary of the Department of Environment and Natural Resources,
G.R. No. 101083, reprinted in 33 ILM 173, 187 (1994).
14/ See Bureau of National Affairs, International Environment Reporter
(Washington, D.C.), pp. 3:0101-33:0111, para. 2.
15/ However, note the written statement by the United States, which "does
not, by joining consensus ... change its long-standing opposition to the so-
called `right to development'". For the United States, development "is not a
right ... [it] is a goal we all hold". See A/CONF.151/26/Rev.1 (vol. II),
chap. III, para. 16.
16/ E/CN.4/Sub.2/1994/9, paras. 49 and 68.
17/ General Assembly resolution 41/128, annex.
18/ A/CONF.157/24 (Part I).
19/ General Assembly resolution 48/141, para. 3 (c); see further, in
particular, para. 4 (c).
20/ A/CONF.177/20, chap. I, resolution 1, annex II, inter alia, paras.
42, 216 and 231.
21/ Adopted at the World Summit for Social Development, Copenhagen,
6-12 March 1995 (A/CONF.166/9, chap. I, resolution 1, annex I).
22/ See Constitutions of the Countries of the World, A. P. Blaustein and
G. H. Flanz, eds. (Dobbs Ferry, Oceana).
23/ Art. 6 (b); and preambular paras. 9 and 22, and art. 2.2
respectively.
24/ M. Bothe and C. Schmidt, "Internationalization of natural resource
management in Yearbook of International Environmental Law, vol. IV (1993),
pp. 88, 96.
25/ Adopted on 1 November 1995 at the Intergovernmental Conference to
Adopt a Global Programme of Action for the Protection of the Marine
Environment from Land-based Activities (A/51/116, annex I, appendix II, fifth
preambular paragraph).
26/ A/CONF.177/20, chap. I, resolution 1, annex II, paras. 17, 44, 47-57,
and 246.
27/ Food and Agricultural Legislation, vol. 42 (1993), p 195.
28/ See also arts. 4.4, 4.5, 4.6 and 4.7.
29/ See also preambular para. 16.
30/ See also chap. 2 of Agenda 21.
31/ See, inter alia, Desertification Convention, preambular para. 17,
art. 12; Forest Principles, principle 10; 1996 Istanbul Declaration, para. 10.
32/ The United States rejected an interpretation of principle 7 "that
would imply a recognition or acceptance by the United States of any
international obligations or liabilities, or any diminution in the
responsibilities of developing countries" (A/CONF.151/26/Rev.1 (Vol. II),
chap. III, para. 16.
33/ See, for example, arts. 16(2,3); 17(1); 18(2); 19(1,2); and
20(1,2,3).
34/ Adopted 7 November 1996.
35/ See, e.g., Title I (arts. 33-45) and Protocol 10 on sustainable
management of forest resources of the Fourth APC-EEC Convention of Lome', as
revised by the Agreement signed in Mauritius.
36/ E/1995/32, para. 31.
37/ For example, United States of America, Amendment to the Clean Air Act
1993.
38/ See report of the Secretary-General on chap. 4 of Agenda 21
(E/CN.17/1997/2/Add.3).
39/ E/CN.17/1996/5/Add.1.
40/ See, e.g., European Union, Commission regulation 880/92 of
23 March 1992 on a Community eco-label award scheme. Official Journal of the
European Communities, 1992, series L 99, p. 1.
41/ Cf. European Union, "Eco-management and audit scheme", Commission
regulation 1836/93 of 29 June 1993, allowing voluntary participation by
companies in the industrial sector in a Community eco-management and audit
scheme. Official Journal of the European Communities, 1993, series L 168,
p. 1.
42/ Germany, Act for Promoting Closed Substance Cycle Waste Management
and Ensuring Environmentally Compatible Waste Disposal (Kreislaufwirtschafts-
und Abfallgesetz), art. 1 of Waste Avoidance, Recovery and Disposal Act of
27 September 1994, Federal Law Gazette Part 1, No. 66, of 6 October 1994.
Cf. European Union Council directive 91/156/EEC of 18 March 1991, amending
directive 75/442/EEC on waste. Official Journal of the European Communities,
1991, series L 78, p. 32. Council directive 91/689/EEC on hazardous waste.
Official Journal of the European Communities, 1991, series L 377, p. 20.
43/ See report of the Secretary-General on chap. 34 of Agenda 21
(E/CN.17/1997/2/Add.24).
44/ Cf., inter alia, Japan, Law on Temporary Measures to Promote the
Rational Use of Energy and the Utilisation of Recycled Resources by Business;
Greece, Law No. 2244/94 enhancing the national production and installation of
small solar water-heating systems through tax-related incentives. In
Indonesia, a programme for pollution control, evaluation and rating provides,
among other measures, for the promotion of the use of clean technologies
(Ministerial Decree No. KEP-35/MNLH/7 [1995]).
45/ Council directive 96/61, Official Journal of the European
Communities, 1994, series L 330, art. 10 and annex IV; in regard of integrated
pollution prevention and best available techniques and technologies. Cf. also
earlier application of best available technologies in, e.g., France, the
United Kingdom, and Denmark.
46/ E.g., eco-funds in Hungary and Poland. See also various funds in the
European Union - e.g., LIFE, established by Council regulation 1973/92
(Official Journal of the European Communities, 1992, series L 206); Tunisia,
Fund for Decontamination; Republic of Korea, Fund for Prevention of
Environmental Pollution; also mostly privately managed "green (investing)
funds" in the United Kingdom and the United States.
47/ For example, para. 23.2 provides that "individuals, groups and
organizations should have access to information relevant to environment and
development held by national authorities, including information on products
and activities that have or are likely to have a significant impact on the
environment, and information on environmental protection measures".
48/ 1989 ILO Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, arts. 6-7; Convention on Biological Diversity preamble;
Agenda 21, chap. 26.
49/ Convention on the Elimination of All Forms of Discrimination against
Women, art. 7 (b), on the right to participate in formulating government
policy, and art. 14.2 (a), the right to participate in development planning;
Convention on Biological Diversity preamble; Agenda 21, chap. 24; 1995 Beijing
Platform for Action, para. 253 (a).
50/ See Agenda 21, paras. 27.10 and 8.18.
51/ Art. 4.1 (i); arts. 12.9 and 12.10.
52/ On the status of non-governmental organizations under various
conventions, see, e.g., Convention on Biological Diversity, art. 23(5);
Convention on Climate Change, arts. 7.2.(l), 7.6; Desertification Convention,
art. 22(7).
53/ Colombia, Law 99 of 28 December 1993; cf. C. Mora, in "Compilation of
questionnaires, April 1996", distributed at the International Environmental
Conference on Codifying the Rio Principles in National Legislation. Country
report on Colombia.
54/ M. Damohorskþ, in "Compilation of questionnaires" (see note 53).
Country report on the Czech Republic.
55/ Part XII, sect. 5 (arts. 207-212) obliges States to adopt laws and
regulations to prevent, reduce and control pollution of the marine environment
on the basis of internationally agreed rules and standards.
56/ Cf., inter alia, Croatia, Environmental Protection Act (27 October
1994); Hungary, Act LIII of 1995 on General Rules of Environmental Protection;
Japan, Basic Environmental Law (12 November 1993); Maldives, Environmental
Protection and Preservation Act (April 1993); Seychelles, Environmental
Protection Act (13 September 1994). For additional examples of framework laws
for environmental management in developing countries and countries with
economies in transition, see Peigi Wilson and others, "Emerging trends in
national environmental legislation in developing countries", appendix I, in
UNEP's New Way Forward: Environmental Law and Sustainable Development, Lal
Kurukulasuriya, ed. (Nairobi, UNEP, 1995).
57/ Examples of this type of legislation are forest protection acts,
animals conservation acts, water resources act, acts for the establishment of
protected land areas and national parks, fisheries acts, and acts regarding
public health and welfare.
58/ The North American Agreement on Environmental Cooperation, (see note
14) states in art. 1 (e), as one of the objectives of the agreement, (to)
avoid creating trade distortions or new trade barriers.
59/ See, e.g., the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES) (12 ILM 1085) the Basel Convention on
the Control of Transboundary Movements of Hazardous Wastes and their Disposal
(28 ILM 657); and the Montreal Protocol on Substances that Deplete the Ozone
Layer (26 ILM 155).
60/ WTO, Committee on Trade and Environment (WT/CTE/W/40),
7 November 1996. In the report reference is made to the importance of a number
of the principles of the Rio Declaration.
61/ See "Report of the International Law Commission at its forty-eighth
session" (A/51/10 and Corr.1).
62/ Adopted at Lugano, 21 June 1993. 32 ILM 1228.
63/ Adopted 22 March 1989. 28 ILM 657.
64/ Lithuania, arts. 34 and 53 of the Land Act, 26 April 1994; cf. FAO,
Food and Agricultural Legislation, vol. 44 (1995), p. 56.
65/ Chile, Act No. 19.300, adopting the Act Governing the General
Foundations of the Environment of 1 March 1994, Diario Oficial de la
Repu'blica de Chile, No. 34.810 of 9 March 1994, pp. 3-10.
66/ Finland, Act on Compensation for Environmental Damage (SSK
19 August 1994/737), adopted on 8 August 1994.
67/ Indian National Environment Tribunal Act, 1995, chaps. II and III
(Act 27 of 1995).
68/ Adopted 30 January 1991. 30 ILM 773 (Agreement) and 31 ILM 163
(annexes).
69/ For example, regulation 259/93 of 1 February 1993 on the supervision
and control of shipments of wastes within, into and out of the European
Community, Official Journal of the European Communities, 1993, series L 30,
p. 1.
70/ Cf. Iwona Rummel-Bulska, "Transboundary movement of hazardous waste,
Yearbook of International Environmental Law, vol. 5 (1994), p. 221.
71/ The precautionary has been included in many other international legal
instruments. See also, inter alia, para. 5 of the Washington Declaration on
Protection of the Marine Environment from Land-based Activities; para. 253 (d)
of the 1995 Beijing Platform for Action; para. 10 of the 1996 Istanbul
Declaration; and the strategic principles of the Pan-European Biological and
Landscape Diversity Strategy (1995).
72/ Adopted in Paris, 22 September 1992. 32 ILM 1069.
73/ The Treaty on European Union, signed at Maastricht on 7 February
1992, entered into force on 1 November 1993. 31 ILM 247.
74/ FAO Fisheries Technical Paper 350/1.
75/ New Zealand invoked the precautionary principle in support of its
application to the International Court of Justice to review France's decision
to recommence nuclear tests. Nuclear Tests Case (New Zealand v. France),
request by New Zealand for an examination of the situation, 21 August 1995, at
paras. 105-108. France replied that the legal status of the principle was
"uncertain". ICJ, Verbatim Record (CR 95/20), 12 September 1995, p. 71.
76/ Cf. Treaty on European Union, (see note 73), art. 130r (2); Mexico,
General Law for Environmental Protection and the Ecological Equilibrium 1988,
art. 15, para. V.
77/ R. Laster, in Compilation of questionnaires (see note 53). Country
report on Israel.
78/ Australia, New South Wales, Land and Environment Court, Leatch v.
Director-General, National Parks and Wildlife Service and Shoalhaven City
Council (23 November 1993); cf. Justice Paul Stein, "Advantages and
disadvantages of codification from the perspective of legal administration in
Australia", Report of the International Environmental Conference on Codifying
Rio Principles in National Legislation, The Hague, 22-24 May 1996
(Publikatiereeks milieubeheer, No. 1996/4), pp. 35 ff.
79/ See, inter alia, Australia, New South Wales, Land and Environment
Court, Alumino v. The Minister of Planning (22 August 1996); New Zealand, High
Court, Greenpeace v. The Minister for Fisheries and Others (November 1995);
but see United Kingdom of Great Britain and Northern Ireland, High Court of
Justice Q.B., Regina v. Secretary of State for Trade and Industry ex parte
Duddridge (3 October 1994), Env L R 151.
80/ Pakistan, Supreme Court, Ms. Shehla Zia and others v. WAPDA
(12 February 1994), 46 PLD SC 693, at 710 (1994).
81/ See, inter alia, OECD documents C (72)128 and C (74)223.
82/ For example, at its third session, in addressing changing production
and consumption patterns, the Commission stated that "[n]ational authorities
should endeavour to promote the internalization of environmental costs and the
use of economic instruments, as appropriate, taking into account the polluter-
pays principle" (E/1995/32, para. 31).
83/ Cf. the reports of the Secretary-General on overall progress achieved
since the United Nations Conference on Environment and Development on chaps.
4, 8, and 33 of Agenda 21 (E/CN.17/1997/2/Add.3, 7, and 23).
84/ For instance, in Poland, the Act on Environmental Protection (1980)
and amendments, and the Geological and Mining Act (1994); Stanislaw Wajda,
"Country report: Poland", Yearbook of International Environmental Law,
vol. 5 (1994), pp. 372 ff.
85/ The Convention has 13 ratifications (January 1997) and needs 16
ratifications to enter into force. 30 ILM 802 (1991).
86/ See Yearbook of International Environmental Law, vol IV (1993),
p. 687 ff.
87/ United States of America, National Environmental Policy Act (NEPA) of
1969.
88/ Burkina Faso, Act No. 002/94/ADP of 19 January 1994; cf. FAO, Food
and Agricultural Legislation, vol. 44 (1995), pp. 440 ff.
89/ Seychelles, Environment Protection Act (13 September 1994), part IV.
90/ Finland, Act on Environmental Impact Assessment Procedure, Act No.
468 of 10 June 1994.
91/ Canadian Supreme Court, Quebec (Attorney General) vs. Canada
(National Energy Board) [1994], 1 S.C.R. 159; see also decisions related to
EIA of the European Court of Justice, e.g., Commission v. Germany [1995] ECR
I-2189.
92/ U. Beyerlin and T. Barsch, "Transboundary environmental cooperation",
Yearbook of International Environmental Law, vol. 4 (1993), pp. 108 ff.
93/ The Convention (INFCIRC/449) entered into force on 24 October 1996
and has 29 Contracting Parties (December 1996). It commits Parties to ensure
the safety of land-based civil nuclear power plants, inter alia, by providing
a legislative and regulatory framework.
94/ Gambia, Hazardous Chemicals and Pesticides Control and Management
Act, 1994 of 24 May 1994. See The Gambia Gazette, Supplement, Act. No. 12 of
1994, pp. 1-43.
95/ See also para. 26 (s) and commitment 5.
96/ See A/CONF.157/24 (Part I), chap. III.
97/ Adopted by the General Assembly on 20 November 1989.
98/ A/45/625, annex.
99/ Preambular para. (c), principles 2 (b) and 2 (d), 5 (a), and 8 (f).
100/ See, for example, Mexico, Decree amending Article 27 of the
Constitution of the Mexican United States of 3 January 1992. Diario Oficial
de la Federacio'n, No. 3 (6 January 1992), pp. 2-4.
101/ See articles 4 (s); cf. FAO, Food and Agricultural Legislation,
vol. 44 (1995), pp. 214 ff.
102/ Adopted 13 January 1993, received sixty-fifth ratification
31 October 1996, will enter into force on 29 April 1997. 32 ILM 1993,
pp. 804-872.
103/ See also arts. V.11 and VII.3.
104/ For example, the draft treaty on the prohibition of the emplacement
of nuclear weapons and other weapons of mass destruction on the seabed and the
ocean floor and in the subsoil thereof.
105/ See also Agenda 21, chap. 39, paras. 39.3 (h) and 39.10.
106/ See UNEP/GC.18/23.
107/ See "Report of the Expert Group Meeting on Identification of
Principles of International Law for Sustainable Development", supra note 4.
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