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The Rio Declaration on Environment and Development - A Commentary edited by Viñuales, Jorge E (1st February 2015)

1 The Rio Declaration on Environment and Development

Jorge E. Viñuales

From: The Rio Declaration on Environment and Development: A Commentary

Edited By: Jorge E. Viñuales

Subject(s):
Sustainable development — Environmental disputes

(p. 1) 1.  The Rio Declaration on Environment and Development

Preliminary Study

I)  Introduction

It came as a surprise to the editor, but also to several contributors and even to the publisher and the reviewers of this volume, that a commentary of the Rio Declaration on Environment and Development had not been produced in the more than twenty years since the 1992 Earth Summit. The Declaration has indeed become the canonical formulation of the legal concept of sustainable development as well as of the main principles of international environmental law underpinning treaties, treaty negotiations, domestic legislation, and a now substantial body of domestic and international jurisprudence. Yet, aside from some studies specifically commissioned by United Nations bodies,1 no such commentary had been attempted until now.

It would be misplaced for me to provide an explanation of this lacuna, which may be due to anything from mere inadvertence, indifference, carefully reflected disinterest, or rejection of its usefulness. It is rather the need for it that deserves to be highlighted. There is little in common among the hundreds of treaties that we traditionally organize under the heading ‘international environmental law’, or the increasing references to environmental considerations in other ‘branches’ of international law, other than the principles and policies gathered in the Rio Declaration. In my view, and I understand that this view is largely shared by the distinguished contributors who have accepted to participate in this project, the Rio Declaration is perhaps the most representative instrument of the entire body of norms, treaties, domestic laws, and decisions governing our relation with the environment.

The Rio Declaration does not cover all questions,2 nor is it for all principles the first or the foremost legal expression. It is a consensual statement, laboriously reached during the last days of the last preparatory meeting (‘PrepCom IV’)3 before the 1992 Earth Summit, bringing together the main principles and policies that underpin our approach to the environment, with its many trade-offs and ambiguities.

These principles and policies have been fleshed out legally in many forms, sometimes in great detail, in norms or treaties or laws relating, aside from environmental protection, (p. 3) to questions as diverse as trade, investment, human rights, the law of the sea, or the law of armed conflict. In this regard, the Rio Declaration is best approached as a ‘moment’ in the emergence and refinement of the norms governing our relations with the environment. Such principles and policies do not ‘belong’ exclusively or, in some cases, even primarily to the Rio Declaration. But the Declaration is unique in that it brings them all together at once to lay the normative foundations of how ‘development’ was to be understood in the aftermath of the Cold War, and not unrestrained development, but development under demanding and yet inevitable environmental constraints.

The Rio Declaration cannot be understood in isolation from the historical context where it emerged, with its many attempts at defining policies guiding our relationship to the environment but, also, the struggle of developing and newly independent countries to reach higher levels of economic and social development. In this preliminary study, I would like to start by situating the Rio Declaration in this broad historical context before examining the details of its negotiation (I). I will then briefly present and analyse different readings of the overall structure of the Declaration (II). As I shall endeavour to show, the Declaration clearly conveys the double nature of environmental protection as both a ‘branch’ and a ‘perspective’ influencing all areas of international law. The third section focuses on the contents and impact of the Declaration (III). After identifying the main functions that can be performed by the ‘statements’ included in the Declaration, I use such functions as an analytical chart to assess the normative and jurisprudential impact of each principle. The fourth and final section examines the current position of the Rio Declaration in the global efforts towards achieving prosperity (economic and social development and growth) within the bounds set to it by the increasingly pressing environmental concerns (IV).

II)  The Rio Declaration in Historical Perspective

1.  Two storylines

Situating the Rio Declaration in its historical context requires selecting an appropriate level of detail and a narrative. Most often, a chronological narrative is offered placing the Rio Declaration as a major result of the 1992 United Nations Conference on Environment and Development (‘UNCED’, also known as the ‘Earth Summit’) that met in Rio de Janeiro, Brazil,4 itself a continuation of the United Nations Conference on the Human Environment that had met in Stockholm twenty years earlier (‘Stockholm Conference’).5 The Rio Declaration is thus mentioned as a step in a storyline that runs from Stockholm to Rio 1992, to the 2002 World Summit on Sustainable Development (‘WSSD’) held in (p. 4) Johannesburg, South Africa,6 and until the more recent 2012 United Nations Conference on Sustainable Development (‘2012 Rio Summit’) and its aftermath.7

The perspective adopted in this preliminary study differs somewhat from the traditional approach. It situates the Rio Declaration within two storylines, one focusing on the broad historical context of the Rio Principles and the other on the specific steps that led to their formulation.

The first storyline places less emphasis on the chronological line, without deviating too much from it, and centres the narrative on the core goals advanced over half a century of international negotiations. This storyline is intended to highlight why the Rio Declaration deserves to stand out among the numerous instruments addressing environmental considerations as the most emblematic set of principles guiding our relationship with the environment.

The second storyline is more specific. It focuses on the steps followed between the late 1980s and the early 1990s to reach the statement of principles and policies eventually entitled, after much negotiation, the Rio Declaration on Environment and Development. It thus covers the procedural dimensions of the travaux préparatoires, but also the broader policy context in which such steps were taken.

2.  The broader context of the Rio Declaration

The broader context of the Rio Declaration precedes by at least a decade the 1972 Stockholm Conference.8 What in the run-up to Stockholm was to be increasingly understood as the ‘human environment’,9 was previously envisioned as either ‘nature’ conservation or ‘natural resource’ exploitation. The decolonization process, which accelerated in the late 1950s and the beginning of the 1960s, brought within the United Nations General Assembly (‘UNGA’) a growing number of newly independent States which, together with existing developing States, justifiably sought to reshape different international agendas to meet their needs.10

One major result of this political fact was the adoption by the UNGA of Resolution 1803 (XVII) on ‘Permanent Sovereignty over Natural Resources’ in 1962.11 This resolution is often neglected in historical overviews of international environmental law and, yet, it epitomizes one of the two poles of the environment-development equation underpinning all sustainable development conferences until today. Through the lenses of this resolution, the environment is understood as a ‘natural resource’ to be appropriated and exploited to foster development.

(p. 5) At the other end of the spectrum, many see, with the benefit of hindsight, the 1972 Stockholm Conference as the high-water mark of environmental protection achieved in a global conference.12 Despite its clear anthropocentric focus (which can be contrasted with the more conservationist World Charter for Nature adopted ten years later)13 and the significant room it devoted to development considerations,14 the Stockholm Declaration has remained the benchmark of environmental protection efforts at the international level. As is well known, the Stockholm Conference also adopted a Plan of Action15 including, among others, a recommendation that led to the establishment of the United Nations Environment Programme (‘UNEP’).16

Ten years later, it was the Governing Council of this organization that, based on a discouraging assessment of progress made on environmental protection,17 triggered the process that eventually led to the UNCED and the Rio Declaration. Despite efforts deployed since the Stockholm Conference to place the environment on the agenda of policy makers, all major environmental indicators had continued to deteriorate. At the roots of this failure was the environment-development equation and, more specifically, the inability of the environmental message to spread beyond environment ministries, particularly to those circles of government that handled economic and social policies. As noted by Gro Harlem Brundtland, the president of the World Commission on Environment and Development (‘WCED’, also known as the ‘Brundtland Commission’), in an interview given in 2004, a key reason why previous efforts had been ineffective was the failure to garner support from government economists.18

When the WCED was established in 1983, a key dimension was therefore to reach out to this sceptical or simply unfamiliar audience. The message was therefore adjusted. The concept of ‘sustainable development’ came into play to align economic and environmental considerations. The elaboration of the concept of sustainable development by the WCED in its report Our Common Future19 amounted to nothing short of a breakthrough. Born in the 1980s as a conservation concept,20 ‘sustainable development’ was one among different competing terms seeking to reconcile economic development and environmental protection. Other (p. 6) concepts had been proposed over time, including the concept of ‘eco-development’21 or that of a ‘green economy’,22 but they were unsuccessful in garnering consensus among different stakeholders. ‘Sustainable development’ proved to be superior in accommodating the developmental concerns expressed by countries such as Algeria, Brazil, and India since the run-up to the Stockholm Conference while remaining sufficiently colourless for industrialized countries not to object.

It is in this context that the process leading to the UNCED was launched and that the UNGA adopted Resolution 44/228 of 22 December 1989 convening the UNCED.23 The detail of the process that resulted in the adoption of the Rio Declaration will be discussed in the next section. For present purposes, my focus will be rather on the overall place of the UNCED within the broad storyline starting in the 1960s. The concept of sustainable development mainstreamed by the Brundtland Commission and crowned at the UNCED breathed new life into global environmental governance and triggered a decade of considerable normative developments. Important indications of this renewed activity are provided not only by the conclusion of several major environmental treaties over the 1990s, including the UN Framework Convention on Climate Change (‘UNFCCC’)24 and its Kyoto Protocol,25 the Convention on Biological Diversity (‘CBD’)26 and its Biosafety Protocol,27 the UN Convention to Combat Desertification (‘UNCCD’),28 the Fish Stocks Agreement29 or the Rotterdam Convention on Prior Informed Consent (‘PIC Convention’),30 but also by the increase in the number of ratifications of major existing conventions.31

Despite these developments, actual implementation remained elusive. Its normative pull notwithstanding, the concept of sustainable development could still not provide an answer to the very real conflicts opposing the two terms of the environment-development (p. 7) equation. Whereas, from a conceptual standpoint, sustainable development amounted to an aspiration, almost a belief in the synergies between development and environmental protection, in practice, such synergies proved to be far from obvious. The risk of clashes became clearer in the late 1990s, as the attention focused on implementation. A first indication was provided at the follow-up meeting of the UNGA in 1997. As noted in the ‘Programme for the Further Implementation of Agenda 21’, adopted on that occasion:

[f]ive years after the United Nations Conference on Environment and Development, the state of the global environment has continued to deteriorate [… ] Some progress has been made in terms of institutional development, international consensus-building, public participation and private sector actions and, as a result, a number of countries have succeeded in curbing pollution and slowing the rate of resource degradation. Overall, however, trends are worsening.32

The shift from normative development to a specific focus on implementation was even clearer at the 2002 WSSD,33 which focused on multi-stakeholder partnerships largely as an attempt to integrate the private sector and, perhaps, also to compensate for the lack of political will to take bolder steps.34 In addition, the WSSD marked a noticeable change on the overall goals pursued. Within the broader context of the UN Millennium Declaration and the Millennium Development Goals,35 the WSSD’s agenda emphasized the social and economic development components over the environmental pillar of sustainable development. The so-called ‘WEHAB Agenda’, which stands for water and sanitation, energy, health, agricultural productivity, and biodiversity and ecosystem management, moved the focus of the negotiations one step further in the direction of development.

The trend was subsequently confirmed by other global conferences, most recently the 2012 Rio Summit.36 It is still early to evaluate the impact of the outcome document on global environmental governance. Aside from the strengthening of the UNEP, particularly through the extension of its Governing Council to all the members of the UN General Assembly and the commitment to a larger budget,37 the main contribution of this document lies in the efforts towards measuring progress. Measurement is, indeed, at the heart of three significant achievements of the Summit: (i) a call for the development of ‘sustainable development goals’ (‘SDGs’) for the period starting after 2015;38 (ii) these goals are to be regularly assessed by a ‘High-Level Political Forum’;39 and (iii) a (p. 8) call for the development of ‘broader measures of progress to “complement” gross domestic product’.40 Despite the environmental significance of these and other elements, the 2012 Rio Summit moved further away from the balance between the two terms of the environment-development equation laboriously found at the 1992 Earth Summit. Social and economic development is no longer seen as ‘one’ overarching objective of sustainable development,41 but as ‘the’ main challenge. As noted in the Outcome document, ‘poverty eradication is the greatest global challenge facing the world today and an indispensable requirement for sustainable development’.42 The shift towards development considerations cannot be stated more clearly. The urgent need to fight poverty is, of course, not in question. It is the hierarchy introduced between the components of sustainable development that must be highlighted. We may recall, in this context, the wording of resolution 2849 (XXVI) of 1971, one of the early expressions of developing country distrust towards environmental considerations. The last paragraph of this resolution reiterated, indeed, ‘the primacy of independent economic and social development as the main and paramount objective of international co-operation, in the interests of the welfare of mankind and of peace and world security.’43

The understanding presented so far is summarized graphically in Figure 1.1:

Figure 1.1.  The first storyline

(p. 9) The storyline summarized in Figure 1.1 places the UNCED and, as discussed next, the Rio Declaration, in the broader context of half a century of environment-related negotiations. The trajectory described by the grey line represents the evolution of such efforts from two perspectives, their situation within the environment-development equation but also their main concern, which has evolved over time from the recognition of environmental problems as a question of global cooperation, to the search of an appropriate programme, to normative development and, more recently, to implementation.

Within this broad picture, the UNCED is situated as a transitional moment, where a balance between environment and development considerations was struck, which allowed for a remarkable normative development at the international and domestic levels. The Rio Declaration captures this moment. Although at the time it was perceived by developed countries as an instrument skewed towards development considerations, in hindsight, it embodies a nuanced balance with a strong environmental component, particularly through the assertion of the main principles of international environmental law (both old—derived from Stockholm—and new—such as the precautionary approach). In the next section, I will zoom in on the historical process that led to the adoption of this document in order to show how the environment-development equation influenced the detail of the negotiations.

3.  The birth of the Rio Declaration

In its report Our Common Future the WCED made the following recommendation:

Building on the 1972 Stockholm Declaration, the 1982 Nairobi Declaration, and many existing international conventions and General Assembly resolutions, there is now a need to consolidate and extend relevant legal principles in a new charter to guide state behaviour in the transition to sustainable development. It would provide the basis for, and be subsequently expanded into, a Convention, setting out the sovereign rights and reciprocal responsibilities of all states on environmental protection and sustainable development.44

The report appended as Annex I a statement of principles prepared by a group of international legal experts to the attention of the UNGA. The Commission noted, however, that such principles were ‘submitted to assist the General Assembly in its deliberations and [had] not been approved or considered in detail by the Commission’.45

This recommendation was followed by the UNGA, which included in the abovementioned Resolution 44/228 convening the UNCED a specific paragraph identifying the following objective:

To promote the further development of international environmental law, taking into account the Declaration of the United Nations Conference on the Human Environment, as well as the special needs and concerns of the developing countries, and to examine in this context the feasibility of elaborating general rights and obligations of States, as appropriate, in the field of the environment, and taking into account relevant existing international legal instruments46

(p. 10) In the meantime, in November 1989, the International Union for the Conservation of Nature (‘IUCN’) had undertaken work on a ‘Draft Covenant’, which was later introduced into the work of the UNCED Preparatory Committee (‘PrepCom’) by the delegation of Iceland.47 However, as noted by a distinguished commentator ‘it was felt that the time was not yet ripe to discuss such a project in intergovernmental meetings’.48

The work of the PrepCom, under the general chairmanship of Ambassador Tommy Thong-Bee Koh from Singapore, unfolded between 1991 and early 1992 in one organizational session in New York and four substantive sessions in Nairobi, Geneva (twice) and New York.49 The negotiations took place, formally, in three working groups and a plenary, although, informally, several ‘contact groups’ were set up to reach basic agreements and hammer out the details of the different texts. The drafting of the instrument/charter/statement/declaration of general principles and obligations was entrusted to Working Group III (‘WG III’), established at the second substantive session, under the chairmanship of Dr Bedrich Moldan from Czechoslovakia. The terms of reference of WG III broadened the substantive scope of the instrument to be drafted, as compared with paragraph 15(d) of Resolution 44/228, by referring to:

general rights and obligations of States and regional economic integration organizations, as appropriate, in the field of environment and development […] taking due account of the conclusions of all the regional preparatory conferences.50

The regional preparatory conferences referred to in this paragraph took place in Bergen, in May 1990 (for Europe and North America), Bangkok, in October 1990 (for Asia and the Pacific), Tlatelolco, in March 1991 (for Latin America and the Caribbean), and Cairo, both in July (for Africa) and September 1991 (for the Near East and West Africa).51 Although several proposals were submitted at the third substantive session of the PrepCom and subsequently compiled in a document (‘L.8’),52 the negotiation of what became the Rio Declaration was not undertaken until the fourth and final session, PrepCom IV, held at the UN Headquarters in New York from 2 March to 3 April 1992.

The conceptions of what the instrument should be were radically different, particularly as a result of the divergent views of developed and developing countries as to the proper (p. 11) balance between environmental and developmental considerations. The atmosphere is captured by an anecdote reported by one commentator:

During the negotiations, one delegate from the developed countries stated thus: ‘The Earth Charter should be framed and put in the room of every child of the world’. A delegate from the developing countries immediately retorted: ‘Not every child has a room, maybe not even a bed!’53

This divergence underpinned virtually all aspects of the negotiations, starting with the very title and location of the instrument to be adopted. Maurice Strong, the Secretary-General of the UNCED (and previously of the 1972 Stockholm Conference) favoured the adoption of an ‘Earth Charter’, with a strong environmental focus. Conversely, the G77 and China advocated for a title that would reflect the importance of development considerations and proposed a ‘Rio de Janeiro Declaration on Environment and Development’. Although most non-governmental organizations and industrialized countries favoured an ‘Earth Charter’, the United States was itself sceptical with respect to Strong’s idea and noted, by reference to the 1982 World Charter for Nature, that it was important not to raise unrealistic expectations.54 Discussions on this question started at PrepCom III and continued at PrepCom IV. At the latter meeting, it became clear that the G77’s position would prevail. In this context, Strong introduced an ‘Earth Pledge’ which was displayed at the UNCED in a giant poster that was signed by hundreds of delegates as well as by presidents Bush (United States), Mitterrand (France), and Collor de Mello (Brazil).55

There was also disagreement as to whether the Declaration would be a stand-alone instrument, a position favoured by the G77, or a mere prologue to the ambitious and far-reaching Agenda 21, as suggested by the United States.56 This disagreement explains why the G77 opposed the attempts of developed countries at negotiating the preamble first, in order to avoid that this point take too much time and eventually lead to a preamble instead of a full declaration.57

As to the content of the instrument, it largely reflects the convoluted negotiation process that eventually led to the formulation of the different principles. The bulk of the negotiation of WG III at PrepCom IV was indeed devoted to the statement of principles. The chairman, Dr Moldan, presented his reference document, which had been circulated in the intersessional period,58 incorporating the proposals compiled in L.8. The G77, represented by Pakistan and China, opposed this document and stated that they would submit a new document that could serve as the basis for the negotiations and that, in the meantime, the discussions should focus on L.8. This inauspicious beginning was emblematic of what would follow. After the G77 submitted its new draft (‘L.20’),59 several other (p. 12) new drafts were submitted inter alia by the United States (‘L.21’), Japan (‘L.22’), Canada (‘L.23’), Australia (‘L.24’), the EC countries (‘L.25’) the Nordic countries (‘L.27’), and the UK and Denmark (‘L.28’).60

A deadlock concerning the question of which draft would be used as the basis for negotiations was overcome by an intervention of Tommy Koh and the creation of a ‘contact group’ under the alternate chairmanship of Mr Mukul Sanwal, of India,61 and Mr Ole Holthe, of Norway. After a cluster approach, separating ‘easy principles’ from most contentious ones, was agreed and subsequently reversed by the G77, negotiations were conducted on a principle-by-principle basis. Yet, after a few days some principles that were deemed to be ripe for consensus (eg those relating to women, capacity-building or the ‘Stockholm’ principle, ie prevention) were delegated to smaller drafting groups. The contact group produced a bracketed text, which was forwarded to WG III for finalization.

Yet, the negotiations faced another deadlock and on 31 March, Tommy Koh was asked to step in. He asked the co-chairs of the contact group to produce a negotiating text by the 1st April at 6:30 pm and convened another small contact group consisting of eight industrialized countries (the US; Portugal, the Netherlands and Germany, on behalf of the EC; Australia, on behalf of CANZ—Canada, Australia, and New Zealand; Norway, alternating with Sweden; Japan; Russia) and eight developing countries (Pakistan, India, Iran, Brazil, Mexico, Nigeria, Tanzania, and China). This group met on the evening of the 1st April under the chairmanship of Mr Koh and produced by 6:15 of the following day an unbracketed text with a preamble and 27 principles.62 This text was presented by Koh to the PrepCom IV plenary as his own draft and adopted for referral to the UNCED.63

In Rio, the negotiations were formally conducted in two main settings, namely the Plenary, chaired by the Brazilian President Fernando Collor de Mello, which included a ministerial and a summit segment (from 12–14 June), and the Main Committee, chaired by Tommy Koh, where the political negotiations actually took place. The Main Committee approved the draft ‘Rio Declaration on Environment and Development’ adopted at PrepCom IV ‘by acclamation’ without making any changes.64 The text was (p. 13) forwarded to the Plenary, which adopted it. However, at this point, the United States and France added a number of interpretive statements concerning some principles and the Palestinian delegation also made a statement.65

The perception of the Rio Declaration in the immediate aftermath of the UNCED was contrasted. As noted at the time by Alexandre Kiss:

The Rio Conference can be considered in different ways, like a bottle which is seen half full or half empty, according to the optimism or the pessimism of the person who contemplates it. The Declaration itself has disappointed some, who hold that it does not constitute real progress when compared to the Stockholm Declaration and the 1982 World Charter for Nature.

However, this instrument, which is often supported by other texts adopted by the Rio Conference, confirms several international environmental law rules and reinforces emerging ones, some of which are particularly important…66

Observers from industrialized countries were discouraged by the strong development dimension of the instrument, which they viewed as a step backwards as compared to the Stockholm Declaration.67 Observers from developing countries saw instead such dimension as a positive adjustment to the environmental focus of Stockholm.68 As noted in the previous section, with the benefit of hindsight, the balance struck by the Rio Declaration is more sensitive to environmental considerations than the trend subsequently followed, particularly since the late 1990s. Such sensitivity is conveyed by the re-affirmation, but also the introduction, of the main cardinal principles of international environmental law.

III)  The Architecture(s) of the Rio Declaration

1.  Structure and scope

The analysis of the structure of the Rio Declaration is a necessary step in any attempt at understanding its normative scope. The discussion of the travaux préparatoires suggests that there is no uniform or carefully reflected structure pursued by the delegations in drafting this instrument.

However, one of the co-chairs of the contact group that drafted the main basis for negotiation, Mr Mukul Sanwal, subsequently published an article identifying different clusters of principles explicitly relating to certain issues.69 Sanwal’s 1993 article is valuable not only because of his role in the drafting process, but also because it spells out the policy programmes within the overall programme of the declaration. Another interesting contribution, perhaps more representative of pro-environment and legally-oriented views, (p. 14) is that provided by Alexander Kiss in a brief chapter published in 1994.70 Kiss focuses on the contribution of the declaration to international environmental law as well as on what he sees as the foundations of a law of sustainable development.

These two ‘models’ of the structure of the Rio Declaration are useful to distil the core values underpinning this instrument as well as its broader implications for our understanding of the law governing our relations with the environment.

2.  Models

Sanwal sees the Rio Declaration as a clarification as well as a further development of the concept of sustainable development.71 Although he does not use these terms, his model can be understood as a set of programmes within the overall programme of sustainable development. More specifically, one gathers the impression that the principles of the Rio Declaration are taken as modular components that can be combined into programmes addressing different questions.

He refers to four main programmes concerning:72 (1) the balancing between substantive requirements of development and procedural requirements (broadly understood) for implementing environmental protection; (2) the adoption by States of certain procedures (again, broadly understood) to integrate environmental protection in decision-making processes; (3) international cooperation on socio-economic issues; and (4) the development of a global partnership to conserve, protect, and restore the integrity and health of the Earth’s ecosystems. The ways in which different principles (or modules) are combined into these four programmes is summarized in Figure 1.2:

Figure 1.2. Sanwal's model

Balance

Integration

Cooperation

Partnership

  1. 1.  Human beings at the centre of concerns (Principle 1)

  2. 2.  A right to development (Principles 2 and 3)

  3. 3.  Environmental protection as an integral part of development (Principle 4)

  4. 4.  Eradicating poverty as an indispensable requirement for sustainable development (Principle 5)

  1. 1.  Effective environmental legislation (Principle 11)

  2. 2.  Public participation in environmental matters (Principle 10)

  3. 3.  Application of the precautionary approach (Principle 15)

  4. 4.  Promotion of the polluter-pays principle (Principle 16)

  5. 5.  Adoption of environmental impact assessment (Principle 17)

  6. 6.  Notification in case of risk or emergencies (Principles 18 and 19)

  1. 1.  Decrease disparities in the standard of living (Principle 5)

  2. 2.  Strengthen endogenous capacity (Principle 9)

  3. 3.  Promote a supportive and open international economic system (Principle 12)

  4. 4.  Prevent the transfer of harmful activities and substances (Principle 14)

  5. 5.  Develop a legal liability regime as a transboundary regulatory instrument (Principle 13)

  1. 1.  Reducing and eliminating unsustainable patterns of production and consumption (Principle 8)

  2. 2.  Promoting appropriate demographic policies (Principle 8)

  3. 3.  Exchanging scientific and technical knowledge (Principle 9)

  4. 4.  Enhancing the development, adaptation, diffusion, and transfer of new and innovative technologies (Principle 9)

  5. 5.  Promoting a supportive and open international economic system (Principle 12)

(p. 15) Although there is some overlap among the programmes identified by this model of the Rio Declaration and despite the fact that some of the key principles (eg differentiation in Principles 6 and 7) are not clearly brought to bear, Sanwal’s account provides much texture to an otherwise dry statement of principles. Specifically, it suggests that there are different possible readings of the text and that principles may be relevant for more than one programme.

The model outlined by Kiss in his chapter pursues a different objective, namely to capture the contribution of the Rio Declaration to the development of international law. The topographic accidents that this account seeks to highlight are therefore different from the outset. He distinguishes between ‘legal principles’ and ‘policy guidelines’. Within the first category, he further distinguishes between rules that had already been stated in the Stockholm Declaration (confirmed) and those that the Stockholm Declaration did not mention (newly stated). As for ‘policy guidelines’, the Declaration identifies three clusters of provisions relating, respectively, to ‘development’, the ‘World Economic Order’ and ‘participation’. The overall model can be summarized graphically as follows:

Figure 1.3.  Kiss’ model

The model advanced by Kiss has advantages and disadvantages. One problem is that a statement of a rule in the Stockholm Declaration is not a reliable indication of whether the rule existed or not prior to its general statement in Rio. In fact, there are cases where a principle characterized as newly stated was grounded in customary international law before 1992 (eg Principle 18, which Kiss explicitly mentions) as well as other cases where (p. 16) the customary status of a principle is still subject to some controversy (eg Principle 15). The model is, however, interesting because it confirms that the principles of the Rio Declaration can indeed be organized in clusters (in Kiss’ account ‘development’, ‘World Economic Order’, and ‘participation’). Perhaps most importantly, Kiss’ model introduces a relatively clear distinction between the principles relating to international environmental law and those concerning more broadly sustainable development, and it links the latter with the broader body of development law, including the New International Economic Order elaborated in the 1970s.73

The most salient features of the preceding models can be incorporated into a third model specifically intended to single out the main provinces of the declaration. This third model operates within a broad framework defined by the need to maintain and contribute to peace (Principle 25) through global cooperation (Principle 27) and dispute settlement (Principle 26). Within such broad bounds, the backbone of the Declaration is defined by five main principles stating that human beings are at the centre of sustainable development (Principle 1), that the right to development must be exercised in a manner that is respectful across time (Principle 3) and space (Principle 2), by integrating environmental considerations in all policies (Principle 4) and pursuing the eradication of poverty as a priority (Principle 5). Three other sets of principles further specify the programme defined in the backbone: a ‘development set’ elaborating on the economic and social development agenda attached to Principle 3 (Principles 8, 9, 12, 14, 20, 21, 22, and 23); an ‘environment set’ elaborating on prevention and environmental integration (Principles 8, 10, 11, 13, 15, 16, 17, 18, 19, and 24); and a ‘differentiation set’ distributing the benefit/burden entailed by these two programmes (Principles 6, 7, and 9). Figure 1.4 summarizes this model graphically:

Figure 1.4.  The architecture of the Rio Declaration

(p. 17) This architecture of the Rio Declaration has, as the other models, advantages and disadvantages. It does not provide sufficient detail either to clearly disentangle legal principles from policies or to identify more specific programmes (eg participation or human rights) within the declaration. The distinction between sets also obscures to some extent the close connections among principles and, more generally, among what we nowadays call the three pillars of sustainable development. However, this architecture is useful for present purposes because (i) it clarifies the province of environmental principles within the declaration, (ii) it sets apart several principles relating primarily to economic and social development, which are also the connectors with the international law of development elaborated in the 1970s and 1980s and with other branches of international law (international economic law, human rights, and humanitarian law), (iii) it shows the key role of differentiation principles in connecting the development and the environment sets, and (iv) it singles out the role of the prevention principle within the backbone of the declaration as the connector between the right to development and the integration requirement. It would be more accurate to place the second component of Principle 3 (intergenerational equity) together with the second and third components of Principle 2 (prevention in a transboundary and global context) and, conversely, to locate the first component of Principle 2 (sovereignty over natural resources) together with the right to development stated in Principle 3. But such a conceptual cartography would break the different principles of the declaration into smaller pieces and thereby blur, rather than clarify, the overall picture. In the next section, the implications of the four features or ‘accidents’ of the Rio Declaration’s topography are analysed in more detail.

3.  The significance of the Rio Declaration

The Rio Declaration is in many ways a crossroads, where different historical trends met and found expression. Its significance can only be understood if the relation between such trends and their condensed legal expression is explained.

The first trend, which emerged in the 1960s, is the growing environmental awareness. In a remarkable effort, Jacques Grinevald has brought together and commented the main scientific contributions that catalysed the environmental movement.74 In addition to those books and writings that captured the attention of public opinion,75 several major contributions were made in the fields of ecology,76 economics,77 philosophy,78 and law,79 to name but some of them. I have drawn the policy storyline in section I) 2 above. This trend found expression in the run-up to the Stockholm (p. 18) Conference and, even more, in the process that led to the UNCED. Some empirical studies show that around 1992, several indicators of environmental awareness, such as the ratification of environmental treaties, financial contributions to the environment fund created in 1972 to finance the UNEP80 or the creation of domestic environmental institutions,81 experienced peaks or significant rises. The Rio Declaration conveys this trend through the formulation of several environmental principles, the ‘environment set’, some of which go beyond the programme outlined in the Stockholm Declaration.82 As I noted earlier, these principles are themselves more specific expressions of the overarching principles of prevention (Principle 2) and integration of prevention within other policies (Principle 4). In some cases, these expressions can be seen as autonomous norms operating at the international level. As will be discussed in this commentary, the prevention principle is widely understood to be expressed by the duties of cooperation (Principles 18 and 19), the requirement to conduct an environmental impact assessment (Principle 17), increasingly involving the public (Principle 10), and the duty or at least the entitlement to follow a precautionary approach when scientific information is not sufficient to understand the risks of certain activities (Principle 15). In other cases, such expression is more accurately seen as an exhortation to adopt measures on questions such as unsustainable patterns of production and consumption or demographic policies (Principle 8), liability for environmental harm (Principle 13), prevention of environmental harm in armed conflict (Principle 24), or, more generally, legislating on other environmental problems (Principle 11), or as parameters guiding the adoption of such policies, such as the cost-internalization required by the polluter-pays principle (Principle 16). Importantly, although some of these principles and policies explicitly allow for differentiation (Principles 11, 15, and to a lesser extent 2), most of them set a general environmental standard applicable to all States. Of course, as will be discussed in the relevant chapters, differential and developmental considerations are often implicit in the wording of some environmental principles, but the clear focus on environmental protection and the scope of the environment set highlight the significance of the Rio Declaration for international environmental law.

The second trend originated in the 1960s with the decolonization process and the struggle of developing and newly independent countries to reshape the international legal order to reflect their own needs. As noted by Michel Virally, one of the pioneers of what came to be known as the international law of development:

[i]t is only when, through decolonisation, a multitude of new actors breaks into the international sphere, all coming from the poorest and less economically advanced regions, that a new disequilibrium will become significant. It will now be a disequilibrium between the industrialised or developed world (capitalist or socialist), and those who will be called the Third World.83

The article from which this paragraph is excerpted is illuminating because it anticipates with remarkable accuracy the areas of international law that will be most affected by (p. 19) the growing developmental concerns. Interestingly, Virally saw the international law of development not as a separate ‘branch’ of international law but as a ‘perspective’ that concerned all States (not only developing States) and would necessarily influence most, if not all, branches of international law.84 This observation is particularly important for present purposes. In the preceding paragraph I referred to a number of environmental principles that, together, provide some ‘branch’ identity to the array of norms, treaties, and legally-linked treaties that we call international environmental law. As with any other branch, international environmental law could hardly remain indifferent to the development perspective. It is therefore unsurprising to find references to development in some environmental principles or, perhaps more tellingly, to find such references in addition to both a ‘differentiation’ and a more clearly ‘development’ set of principles. But there is more. Much in the same way as the law of development, the law of environmental protection operates both as a ‘branch’ and as a ‘perspective’, penetrating all areas of international law, from human rights, to humanitarian law, to international trade or investment law, to name a few. Thus, behind the term ‘sustainable development law’, there is in fact a highly complex array of norms, treaties, and legally-linked treaties that share very little in common except for the fact that they are influenced by both the developmental and environmental ‘perspectives’. To understand the significance of the Rio Declaration with respect to this complex question, it is therefore important to use conceptual categories capable of capturing this linguistic and legal sedimentation.What I called the ‘development set’ consists of principles and policies intended to (i) preserve and renew the law of economic and social development as a ‘branch’ (Principles 3, 8, 9, and 12), (ii) adjust or influence international environmental law and other branches of international law, either directly or through its combination with environmental law (Principles 1, 2, 14, 20, 21, 22, and 23).

The influence of development law as a perspective on international environmental law as a branch is mediated by an important set of principles, which I have called the ‘differentiation set’. This set has, in fact, a wider scope, as it may drive also the influence of both development and environmental law as ‘perspectives’ on branches such as trade law, investment law, the law of the sea, and others. However, in the context of the Rio Declaration, Principles 6, 7, and 9 are intended to highlight the special situation of development countries (Principle 6), and thereafter distribute the burden (Principle 7) of environmental protection measures and the related means to accomplish it (Principle 9). The significance of the Rio Declaration lies in the statement of these general differentiation principles, particularly of Principle 7. The main shortcoming of the differentiation set is the lack of a stand-alone reference (a principle) to the provision of financial resources, despite the critical importance of this issue for differentiation purposes.

The two trends identified and their articulation through differentiation are expressed, in a condensed but legally meaningful manner, by the prevention principle formulated in Principle 2. In its contemporary understanding, the prevention principle highlights both the use of a State’s own natural resources and the prevention of environmental harm per se. It articulates the two building blocks of the development and environment sets, namely right to development (Principle 3) and the need (p. 20) to integrate environmental—ie prevention—considerations in development policies (Principle 4). The differentiation dimension was introduced in Principle 2 through the addition ‘and developmental policies’ to the wording of the original Stockholm Principle 21. The co-chair of the contact group that negotiated this wording wrote in this regard that ‘[t]he addition reflects the recognition that development must not be constrained by the generalized rules of international law for the environment’.85 All in all, the so-called ‘Stockholm Principle’ and perhaps even more the Rio formulation can be seen as the legal cornerstone of international environmental law as adjusted by development considerations.

IV)  The Principles and their Impact

1.  Methodology

Any attempt at assessing the impact of the Rio Declaration must clarify what is being assessed and how the assessment is carried out. The chapters of this commentary assess the ‘normative impact’ and, when applicable, the ‘jurisprudential relevance’ of each principle brought under the umbrella of the Rio Declaration.

‘Normative impact’ is understood as the influence of a principle in the drafting of subsequent instruments, mostly treaties but also soft-law instruments, including codification works conducted by bodies such as the International Law Commission (‘ILC’),86 the Institut de Droit International (‘IDI’)87 or the International Law Association (‘ILA’).88 This is the approach that has been followed in some previous efforts at assessing the impact of the Rio Declaration, whether by the Commission on Sustainable Development (‘CSD’),89 the UN Secretary-General90 or the UN Division for Economic and Social Affairs.91 However, two important caveats must be added. First, one must not always identify a ‘principle’ with a given formulation either in the Rio Declaration or in another instrument. Principles such as no-harm, prevention, notification in case of emergency, cooperation on shared resources, or peaceful settlement of disputes, to name but a few, existed prior to the Rio Declaration itself and found expression in a variety of instruments, sometimes explicitly (eg in a treaty provision) and other times implicitly (eg when the architecture of the entire treaty or of an identifiable part of it is based on the principle). In these cases, the assessment concerns (p. 21) the impact of an existing principle and may concern instruments adopted before the Rio Declaration or which express the principle without taking up the specific formulation of the Declaration. They are nevertheless integrated in the assessment because, as noted earlier in this chapter, the Rio Declaration is viewed as a synthesis of principles, including some that pre-existed its adoption. The second caveat concerns the theoretical foundation of assessing the ‘normative impact’ of the principles expressed by the Rio Declaration. From the perspective of the ‘functions’ that a principle may perform, a very important one lies in its ability to shape a norm, a treaty (or an identifiable part of it), or a legally linked set of treaties. In this regard, assessing the ‘normative impact’ of a principle amounts to assessing the extent to which it has performed an architectural function in international law.

The large majority of chapters also assess the ‘jurisprudential relevance’ of the principles gathered in the Rio Declaration. The caveats above also apply mutatis mutandis to this assessment. There are indeed cases that do not refer explicitly to the Rio Declaration, and yet, they concern a variation (typically derived from treaty law) of a principle included in the Rio Declaration. The assessment of jurisprudential ‘relevance’ must therefore not be equated with one of ‘impact’ of the Rio Declaration as an instrument but rather as an attempt at understanding how the many principles brought under the umbrella of the declaration may operate in a jurisprudential context. From a theoretical standpoint, two main functions of these principles are being assessed in this context, namely an ‘interpretive’ and a ‘decision-making’ function. The interpretive function of a principle may aim to clarify a norm,92 or to update its content93 or to conciliate competing norms or the values underpinning them.94 The decision-making function refers to the operation of a norm as a primary rule of obligation defining a conduct, which can be used to decide a case.95

In the following section, I briefly discuss each principle identifying its substantive centre of gravity as well as some concrete legal manifestations from the perspective of ‘architectural’, ‘interpretive’, or ‘decision-making’ functions. Much more detailed analysis is of course provided in the chapters of this volume. My main goal here is simply to summarize the main findings of the substantial research effort conducted by the contributors to this commentary and thereby to highlight the approach that we have all followed, namely to bring the principles gathered in the Rio Declaration down to earth by clarifying their strictly legal manifestations. Although, analytically, it would have been more elegant to organize the discussion following the five clusters of the model identified in the previous section (‘backbone’, ‘environment set’, ‘development set’, ‘differentiation (p. 22) set’, ‘avoiding conflict’), I preferred to follow a more reader-friendly approach in this part of the presentation, discussing each principle according to the order of appearance in the text of the Rio Declaration. This choice responds to the spirit of this commentary, which is not only to highlight the historical importance of the Rio Declaration as an umbrella bringing together a set of key principles but also to give the latter greater purchase in everyday legal practice.

2.  The principles enshrined in the Rio Declaration

2.1.  Principle 1: Human beings and the environment

Principle 1 of the Rio Declaration takes a clearly anthropocentric stance structuring efforts towards sustainable development around human beings:

[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.

The core element of this principle concerns therefore the relations between environmental protection and human welfare. As noted in the chapter by F. Francioni in this commentary, when compared to the more decidedly human rights-oriented Principle 1 of the Stockholm Declaration,96 the formulation of Principle 1 of the Rio Declaration appears as a regression. Out of the possible legal expressions of this principle, it is true that the recognition of a human right to an environment of a certain quality is still controversial at the international level. Aside from two regional treaties, the African Charter of Human and Peoples’ Rights97 and the San Salvador Protocol to the American Convention on Human Rights,98 and the more recent ASEAN Declaration on Human Rights,99 this right has not been expressly formulated or recognized in major human rights instruments.

However, the environmental components of general human rights have been increasingly recognized since the 1990s both at the regional100 and the global101 levels, both from (p. 23) a substantive and procedural perspective (see Principle 10). Moreover, at the domestic level, a growing number of constitutions refer to a human right to an environment of a certain quality.102 Although, as noted by Francioni, human rights approaches to environmental protection are inherently limited by the need to establish a link between environmental degradation and an impairment of a human right, Principle 1 highlights the important relationship between environmental protection and the respect for human rights and, in this regard, it brings into the Rio Declaration these important legal developments.

2.2.  Principle 2: Prevention

As mentioned earlier in this introduction, the prevention principle is in many ways the foundational principle of the Rio Declaration. It not only affirms, by its very wording, the continuity with the Stockholm Declaration (Principle 21 was almost identically phrased) but it also connects, within the backbone of the Rio Declaration, the development and environment sets. This is clear from the wording of Principle 2, according to which:

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.

Thus stated, the prevention principle has three main components, which are analysed in detail in the chapter by L.-A. Duvic-Paoli and myself, namely (i) sovereignty over natural resources, (ii) prevention of transboundary environmental harm, and (iii) prevention of environmental harm beyond national jurisdiction. The ‘sovereignty’ dimension links the principle to the right to development stated in Principle 3 of the Rio Declaration, as well as to what I have called the ‘development set’, whereas the ‘prevention’ dimension brings together the intergenerational equity aspect of Principle 3 and the integration principle stated in Principle 4 and, thereby, what I have called the ‘environment set’. The prevention dimension is increasingly understood as a duty of due diligence with respect to the environment, irrespective of its location, including purely domestic activities.

The prevention principle has had wide influence on the architecture of environmental treaties, whether it is expressly referred to103 or not,104 as well as on codification efforts undertaken (p. 24) by the CSD,105 the IDI,106 the ILC107 and the ILA.108 It has also played a significant interpretive and decision-making function in international jurisprudence, particularly in cases such as the Trail Smelter Arbitration,109 the ICJ’s Advisory Opinion on the Legality of Nuclear Weapons110 or its judgments in the cases relating to the Gabčíkovo-Nagymaros Projet111 and the Pulp Mills over the River Uruguay,112 or the Advisory Opinion of the ITLOS’ Seabed Chamber on the Responsibilities and Obligations of States sponsoring Persons and Entities with respect to Activities in the Area.113

2.3.  Principle 3: From a right to development to intergenerational equity

At the heart of Principle 3 of the Rio Declaration lies a tension between the right to development and the needs of future generations. Principle 3 combines these two components by stating that:

[t]he right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

As noted in the chapter by C. Molinari, over time the gravity centre has shifted from the first to the second component. At the time of the adoption of the Rio Declaration, the wording of Principle 3 was perceived as a success of developing countries in having their right to development expressly recognized. Developed countries managed however to introduce a reference to the rights of future generations in order to stress that the right to development was not without limitations.

In retrospective, the second component has received a clearer legal expression than the first, from the perspective of both its architectural function as well as its interpretive and to some extent decision-making functions. Indeed, aside from the significant number of treaties referring to the need to take into account future generations,114 at the 2012 Rio Summit renewed impetus was given to the idea of institutionalizing intergenerational equity in some form, as analysed in a report by the UN Secretary-General discussing different options.115 From a judicial standpoint, intergenerational equity has been taken into account as one aspect in the assessment of the international legality of nuclear weapons116 as well as in domestic procedures for the granting of permits.117 Significantly, in one case it served as the basis for extending the scope of jus standi to future generations.118

(p. 25) Despite this noticeable shift, which reflects the increasing influence of international environmental law on legal categories, the policy process is moving into the direction of giving more and more importance to development considerations under the malleable banner of sustainable development.119

2.4.  Principle 4: Sustainable development through integration

Principle 4 formulates the main expression of the concept of sustainable development in the Rio Declaration, namely the requirement of integration:

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.

Because of its plasticity, sustainable development pervades the Rio Declaration, often taking more developmental than sustainable forms. However, Principle 4 states a strongly environmental dimension of development policies. It is, indeed, possible to assess whether a policy has taken into account environmental protection or not, although it is much more difficult to define what would be the proper degree of integration.

The principle of integration has been very influential on treaty practice. In their chapter in this commentary, V. Barral and P.-M. Dupuy trace this impact at two levels. First, numerous treaties dealing with areas and questions apparently unrelated to the environment have integrated environmental considerations. Major examples of integration avant la lettre (prompted by the Stockholm Conference) or post Rio include articles 35(3) and 55 of the 1977 Protocol I to the 1949 Geneva Conventions,120 Part XII of the UNCLOS,121 and a variety of references to the environment in treaties concerning trade and investment, including the preamble of the Marrakesh Agreement on the World Trade Organization.122 One can view such integration as a legal expression of environmental law as a ‘perspective’ influencing international law as a whole and not merely a ‘branch’ of it. Second, integration has been explicitly referred to in a number of environmental treaties, particularly in connection with the use of the relevant resources. Examples include the UNFCCC,123 the CBD124 or the UNCCD.125

The principle of integration has also been influential in judicial practice, mostly performing an interpretive function to take into account environmental considerations in treaties that did not explicitly referred to them. Major illustrations include the ICJ’s decision in the cases concerning the Gabčíkovo-Nagymaros Project126 or the Pulp Mills over the River Uruguay,127 the decision of the WTO Appellate Body in the Shrimp-Turtle case,128(p. 26) or the awards of the tribunals constituted to hear the Iron-Rhine case129 and the Indus Waters Kishenganga case.130

2.5.  Principle 5: Poverty eradication

At the 1972 Stockholm Conference, Indira Gandhi, then Prime Minister of India, famously noted that ‘poverty is the worst form of pollution’.131 Principle 5 of the Rio Declaration stated this priority in clear terms:

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.

The chapter by C. Golay and T. Karimova in this volume addresses this eminently developmental principle, which confirms the anthropocentric approach stated at the beginning of the declaration’s ‘backbone’ in Principle 2. Principle 5 places the eradication of poverty as a step in the process of reducing the disparities in the standards of living. These goals or, more precisely, the priority of poverty eradication within the overall goal of reducing disparities is to be achieved through cooperation at all levels. Cooperation appears in several principles of the Rio Declaration in more (Principles 18 and 19) or less (Principles 5, 7, and 27) specific forms.

Despite the broad formulation of Principle 5, as noted by Golay and Karimova, the goal pursued is deeply rooted in human rights law.132 Of particular relevance in this regard is the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),133 which in several provisions, particularly article 11, gives legal grounding to the goal pursued by Principle 5, through the recognition of the rights to food,134 housing,135 and water/sanitation.136 Such grounding provides some room for future judicial or quasi-judicial practice, particularly after the entry into force of the Optional Protocol to the ICESCR in May 2013.137

The focus on poverty eradication expressed by Principle 5 has been very influential in the policy processes after Rio. Three major reaffirmations of this priority are found in the 2000 MDGs, particularly in MDG 1 aimed at halving extreme poverty and hunger by 2015, the ‘Political (p. 27) Declaration’ issued after the 2002 WSSD,138 and, more recently, the Outcome document of the 2012 Rio Summit. According to the latter ‘poverty eradication is the greatest global challenge facing the world today and an indispensable requirement for sustainable development’.139 Poverty eradication is expected to be a major priority of the SDGs that are currently being discussed and which will complement the MDGs as part of the post 2015 agenda.

2.6.  Principle 6: Special situation of developing countries

Principle 6 states the general need for differentiation and, within it, the specific needs of developing countries:

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.

The negotiation of this principle only raised controversy on the question of whether countries in a transition to a market economy were to be expressly mentioned or not.

This discussion concerned the first core element of Principle 6, namely the parameters of differentiation. Indeed, there was consensus (i) on the need to recognize the special needs of developing countries, and (ii) on the particular situation of ‘less developed’ and ‘environmentally vulnerable’ countries. As noted by M. Hébié in his chapter in this volume, the need to prioritize (the first sentence of Principle 6) is formulated in mandatory terms (‘shall’) requiring some degree of differentiation to take into account the special needs of developing countries. General differentiation has had significant normative impact, influencing the architecture of treaties as important as the UNCLOS,140 the Montreal Protocol,141 the CBD and its Biosafety Protocol,142 the UNFCCC and its Kyoto Protocol,143 or the Stockholm Convention on Persistent Organic Pollutants (‘POP Convention’).144 General differentiation has also been reasserted in soft-law instruments, including the Programme of Action for the Sustainable Development of Small Island Developing States (‘Barbados Programme of Action’),145 the Mauritius Strategy for the Further Implementation of the Barbados Programme146 or the Programme of Action for the Least Developed Countries 2011–2020 (‘Istanbul Programme of Action’),147 to name but a few.

The second core element of Principle 6 is less specific. It also responds to the key controversy, namely the place of countries in transition within the general differentiation framework. The reference to ‘the interests and needs of all countries’ was a compromise achieved through the intervention of PrepCom chairman, Tommy Koh, (p. 28) to overcome the opposition of developing countries and countries in transition. The latter were not expressly mentioned but their needs are clearly encompassed by the wording used.

In both cases, Principle 6 seeks to allocate ‘actions in the field of environment and development’. The wording is vague, although it is clearly distributional in nature. There are different objects of distribution according to this broad key, including the priorities of different States (some may focus on development whereas others on environmental protection) but also, and more concretely, the allocation of financial and technical assistance. Financial assistance is only implicitly referred to in the Rio Declaration, whereas technical assistance is addressed in Principle 9. Yet, aside from a differentiation in the nature and extent of obligations, the special situation of developing and other categories of countries has been taken into account through assistance systems, framed as sections of an environmental treaty or more generally called for in the form of official development assistance (eg chapter 33, paragraph 13, of Agenda 21).

2.7.  Principle 7: Common but differentiated responsibilities

Principle 7 can be seen, conceptually, as a more specific application of the general principle of differentiation enshrined in Principle 6 and, earlier, in Principle 12 of the Stockholm Declaration. According to 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.

There has been a tendency in the literature to overstate the presence of this Principle in international law, blurring the difference between common but differentiated responsibility (‘CBDR’) and general differentiation. Conceptually, however, CBDR has some specific features which do not overlap entirely with general differentiation, namely (i) it concerns the distribution of the burden of environmental protection, (ii) it focuses on global environmental problems, (iii) the distribution is operated among States, (iv) it focuses on the basis not only of the special needs of developing countries, but also of the different contributions to the problem and the different technological and financial resources available to developed countries.

In this recognizable form, the principle of CBDR has performed an important architectural function in at least four systems of legally linked treaties, namely the Vienna Convention on the Protection of the Ozone Layer and its Montreal Protocol,148 the UNFCCC and its Kyoto Protocol,149 the CBD,150 and the UNCCD.151 These treaty regimes, particularly those concerning ozone and climate change, are fundamentally shaped by CBDR in their distribution of commitments and assistance. The system established by the Montreal Protocol is more nuanced than the one of the Kyoto Protocol in that, unlike the latter, the former imposes similar substantive obligations (p. 29) to both developed and developing (countries operating under article 5) with variations only in the modalities (timeframe) and availability of technical and financial assistance (particularly through the Multilateral Fund created by an amendment to the Protocol). Other more recent treaties, including the POP Convention152 and the Minamata Convention on Mercury,153 also refer to the principle of CBDR. These and other examples illustrate what P. Cullet suggests in his chapter in this volume, namely that CBDR has become so pervasive in post-Rio multilateral environmental agreements that one cannot understand contemporary international environmental law without reference to it. At the same time, the rigid expression of CBDR in the Kyoto Protocol and, to a lesser extent, in the UNFCCC is perhaps the major obstacle to the development of an effective international climate change regime. It is noteworthy in this regard that the decision of the Conference of the Parties launching the current negotiation process, the Durban Platform on Enhanced Action,154 did not refer explicitly to CBDR, although the latter has been reintroduced in the current discussions through a reference to article 3(1) of the UNFCCC.

Regarding the jurisprudential relevance of Principle 7, it can be assessed by reference to a proxy, namely the operation of the general differentiation clauses in treaties such as the UNCLOS or the GATT. Cullet refers, in this regard, to some early disputes before the WTO dispute settlement body concerning ‘Governmental Assistance to Economic Development’ (article XVIII, particularly section B)155 or the Advisory Opinion on the ITLOS Seabed Chamber on the Activities in the Area.156 In the latter case, several provisions recognizing the special needs of developing countries in connection with the exploitation of the resources of the Area were examined. Although the Chamber concluded that, as a matter of principle, there is no difference in the rules governing the responsibility of developed and developing States that sponsor such activities (inter alia to prevent the development of ‘sponsors of convenience’), it acknowledged that some specific regulations may introduce different levels of diligence, particularly with respect to the requirements of the precautionary approach.157 Thus, differentiation was analysed in a specifically environmental context, in connection with a global resource, and in the light of different capabilities of developed and developing countries. This is a clear application of the ‘differentiation set’ (Principles 6 and 7) to qualify the operation of the ‘environment set’ (Principle 15) to take into account developmental concerns. The jurisprudential relevance of CBDR has also been discussed, albeit hypothetically, in connection with the extension of the Emissions Trading Directive to aviation, including to companies from developing countries.158

(p. 30) 2.8.  Principle 8: Sustainable patterns of production and consumption and demographic policies

Perhaps the broadest expression of sustainable development in the Rio Declaration is the call embodied in Principle 8:

[t]o 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.

This principle has two distinct components, each formulating the concern, respectively, of developing and developed countries.

Developing countries strongly advocated for identifying unsustainable patterns of production and consumption as underlying processes defeating ‘sustainable’ development. This reference is broader—and less clear—than the principle of integration enshrined in Principle 4. Indeed, the integration of the environmental dimension in developmental policies as an expression of sustainable development is limited in two respects. First, it refers to developmental policies rather than, more broadly, to growth and development or socio-economic prosperity policies, which encompass the policies of developed countries as well. Second, it focuses on adjusting the policies and not, directly, on the processes generating pollution as such. In this context, the first sentence of Principle 8 is much more encompassing. At the same time, it places the ‘quality of life’ of different peoples as a zero-sum game or, in other words, as a trade-off, implying that the peoples of developing countries cannot attain proper standards of living if the quality of life sustained by the production and consumption patterns in developed countries is not reduced. Not surprisingly, the normative impact of this component of Principle 8 has been selective. As discussed by C. Voigt in her chapter in this commentary, the judgmental aspect of this component has been stripped from the now prevailing concept of sustainable consumption and production (‘SCP’), which is itself aimed at decoupling prosperity from environmental degradation.159 The Plan of Implementation adopted at the 2002 WSSD called for the elaboration of a 10-Year Framework of Programmes (‘10YFP’).160 The 10YFP was subsequently developed under the aegis of the so-called ‘Marrakech Process’ launched in 2003161 and eventually adopted at the Rio 2012 Summit.162

The second component of Principle 8 relates to what developed countries saw as a major area of unsustainability in developing countries, namely population growth. A key (p. 31) consideration in designing demographic policies is the respect and promotion of human rights, particularly of women’s rights. As a follow-up to the UNCED, an International Conference on Population and Development (‘ICPD’) was held at Cairo, Egypt, in September 1994. The ICPD adopted a Programme of Action.163 The statement of principles in this programme is formulated using human rights language. Principle 4 of this statement strongly affirms the link between the human rights of women and population policies. Principle 6 restates the contents of Principle 8 of the Rio Declaration. A report published in 2014 reviewed progress with the 1994 Programme finding that, overall, ‘achievements over the ensuing 20 years [had] been remarkable’.164 This report has, again, a very strong human rights focus and calls for the development of stronger accountability mechanisms.165

2.9.  Principle 9: Science and technology

Principle 9 of the Rio Declaration must be seen as an application of the broader principle of cooperation to matters of science and technology. As noted by S. Maljean-Dubois, this principle is stated in less demanding terms (eg ‘should’ instead of ‘must’) than its predecessor in the Stockholm Declaration (Principle 20). According to 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 and innovative technologies.

This principle has two main components, both aimed at the same goal, namely to strengthen endogenous capacity-building for sustainable development. The first component relates to scientific cooperation, whereas the second concerns the development and transfer of technologies.

Scientific information is a pre-condition for environmental management and, more generally, for any attempt at integrating environmental considerations into developmental policies. Gathering the relevant data, summarizing it and converting it into information that can be used for policy-making is a complex and costly undertaking. In several cases, such cooperation has taken the form of international bodies or networks that specialize in the information relevant for a specific environmental problem. The most visible example is the Intergovernmental Panel for Climate Change (‘IPCC’) established in 1988, which has so far elaborated five assessment reports on climate change and several specialized reports on more specific related topics.166 Another, more recent, example is the creation in 2012 of the Intergovernmental Platform on Biodiversity and Ecosystem Services (‘IPBES’).167 But there are many other institutions embodying international (p. 32) cooperation in scientific matters, such as the EMEP which provided the backbone of the LRTAP Convention,168 the Scientific Council of the Convention on Migratory Species,169 the Ozone monitoring by the WHO’s Global Atmospheric Watch170 or, more generally, the UNEP-led inter-agency network that prepares the Global Environment Outlook.171

The second component focuses on a major distributional question; namely, the development and the transfer of technology. This component emphasizes the differentiation dimension of Principle 9, which recognizes the need for technology sharing in order to enhance the sustainability of the development process of different countries. Although environmental agreements often contain provisions concerning technology transfer,172 their actual implementation has remained limited so far. One major legal obstacle to technology transfer is the protection afforded to innovation by intellectual property rights (‘IPRs’). IPRs are both a major driver of innovation and a significant obstacle to their diffusion. Respect for IPRs, embodied at the international level in treaties such as the TRIPs,173 the Paris Convention174 and, increasingly, investment agreements, raises also potential frictions with technology transfer considerations, which, in turn, may lead to international disputes. As noted by Maljean-Dubois, Brazil and India started consultations under the aegis of WTO dispute settlement procedures in connection with the seizure in The Netherlands of generic drugs in transit.175

2.10.  Principle 10: Public participation

The three pillars of ‘environmental democracy’ identified in Principle 10 have significantly influenced the interpretation of human rights provisions as well as, more generally, domestic and international legislative practice. Principle 10 focuses on procedural environmental rights:

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.

The wording is somewhat convoluted and, except for the explicit assertion that ‘each individual shall have appropriate access to information concerning the environment’ (access (p. 33) to environmental information), the other two pillars, namely participation in environmental decision-making and access to justice are not clearly formulated in human rights terms. However, the three components have been well established as human rights in both treaty practice and jurisprudence.

With respect to the architectural function of Principle 10, among the many treaties and soft law instruments discussed in J. Ebbesson’s contribution to the present commentary, the clearest and most important expression of the three pillars of environmental democracy is the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Aarhus Convention’).176 Although this treaty is a regional instrument, concluded under the aegis of the United Nations Economic Commission for Europe, it is open to the ratification of countries from outside this regional group (eg Tajikistan or Turkmenistan)177 as well as of some regional economic integration organizations (eg the then European Community).178 Public participation has also been integrated to varying degrees in other post-Rio treaties, including the UNFCCC,179 the CBD,180 UNCCD,181 the PIC Convention,182 the POP Convention183 and, more recently, the Minamata Convention.184 In addition, in 2010 the UNEP adopted Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (‘Bali Guidelines’).185

From the standpoint of its interpretive and decision-making functions, Principle 10 and its subsequent expression in treaty law has had significant jurisprudential relevance. The Compliance Committee established by the Aarhus Convention has already received some 100 complaints for violation of the Convention,186 the overwhelming majority of which has been brought by civil society organizations. Indeed, unlike most other non-compliance procedures (‘NCPs’), the NCP established by the Aarhus Convention can be triggered by the public. Principle 10 has also been expressly referred to in the jurisprudence of human rights courts. The European Court of Human Rights (‘ECtHR’) has made reference to it in a number of cases187 in order to interpret the right to private and family life enshrined in article 8 of the European Convention on Human Rights (‘ECHR’).188 The Inter-American Court of Human Rights (‘ICtHR’) has also recognized a procedural dimension to the right to property enshrined in article 21 of the American Convention on Human Rights (‘ACHR’),189 which the Court has interpreted in an environmental light to protect the relation between indigenous and tribal peoples and their traditional lands.190 The African Commission has also considered that some (p. 34) provisions of the African Charter on Human and Peoples’ Rights (‘African Charter’),191 particularly articles 16 (individual right to health) and 24 (collective right to a generally satisfactory environment) have a procedural dimension requiring States to provide sufficient information and participation.192 These are but some representative illustrations of the major jurisprudential relevance of the participatory components formulated in Principle 10.

2.11.  Principle 11: Environmental legislation

The core components constituting Principle 11 are very important for the ‘environment set’ of principles. They provide, as noted by M. Kunz in her chapter in this commentary, a ‘connecting node’, ie a sort of crossroads where many other principles intersect. If the principles of the ‘environment set’ can be seen as condensed environmental policies that are subsequently spelled out in detail in treaty regimes, a logical extension is for such treaties to be effectively implemented at the domestic level. Principle 11 simply recalls such a need and qualifies it by reference to the specific ‘context’ where environmental legislation intervenes:

States shall enact effective environmental 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.

The two components, the requirement to enact effective environmental legislation, and the contextual qualification, are as pervasive as they are difficult to trace in specific legal instruments.

Regarding the first, one could see the normative impact of the components of Principle 11 in most environmental treaties to the extent that the latter often set parameters and require States to take measures to come or stay within those parameters. The Montreal Protocol, the UNFCCC and its Kyoto Protocol, or the CBD are all based on the idea that States will adopt the policies they see fit to stay within the parameters set by the treaty. Even the more specific requirements imposed by treaties such as the Convention on International Trade in Endangered Species (‘CITES’)193 (the system of permits), Basel Convention194 (the shipment-based prior informed consent procedure) or the PIC Convention (the substance-based prior informed consent procedure)195 leave significant room for manoeuvre for States to select the domestic legal expressions that appear most appropriate to their context. Broadly speaking, States follow one of three options: (i) adopting a new and specific piece of legislation to implement a treaty; (ii) amending an existing general environmental act or further specifying such instrument through the adoption of regulations; or (iii) not taking any action, on the assumption that the requirements of the treaty are already addressed in existing domestic instruments.

Regarding the jurisprudential relevance of the two components of Principle 11 and, particularly, their ability to perform an interpretive or decision-making function, again, one must distinguish the statement from its content and look at the latter. From this (p. 35) perspective, it is possible to see the requirement for ‘effective’ environmental legislation in the practice of human rights courts in the European, American, and African contexts, which have interpreted provisions such as article 8 of the ECHR (right to private and family life), article 21 of the ACHR (right to property) or articles 16 and 24 of the African Charter (individual right to health and collective right to a generally satisfactory environment) as entailing a positive duty to regulate the activities of third parties that may cause, through their environmental impact, impairments of human rights.196 At the same time, States enjoy a significant margin of manoeuvre in adjusting their policies to their specific context, which, as noted by Kunz, international law recognizes through concepts such as the ‘margin of appreciation doctrine’,197 ‘the police powers doctrine’,198 and some general exceptions in trade treaties (eg article XX(a), (b) or (g) of the GATT).199

2.12.  Principle 12: The environment and trade

Principle 12 states a key concern of developing countries dating back to the Stockholm Conference and brought to the forefront, on the eve of the UNCED, by the trade dispute between Mexico and the United States regarding the incidental killing of dolphins in tuna harvesting by Mexican fishing vessels.200 ‘Green protectionism’ (restrictions to imports) or even ‘green colonialism’ (de facto extraterritorial extension of environmental policies) were indeed perceived as ‘threats’ by developing countries, who saw environmental protection as a potential barrier to the export of their products to developed country markets. Both threats are reflected in the wording of 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.

The first two sentences of Principle 12 target fears of protectionism, whereas the two latter are primarily concerned with extraterritorial environmental regulation. Openness (access), non-discrimination (by reference to the chapeau of article XX of the GATT), and multilateralism (or even more, an international consensus) are re-affirmed as the policies that should shape the interaction between trade and environmental law.

(p. 36) The normative impact of Principle 12 has been significant. The approach pursued since 1992 has consisted in playing down the potential for tensions and highlighting the synergies between trade and the environment. The Marrakech Agreement establishing the WTO set the tone for this synergistic view, often called ‘mutual supportiveness’,201 by incorporating a reference to sustainable development in its preamble.202 As noted in the chapter by M. Young in this commentary, another major development influenced by Principle 12 has been the creation of the WTO Committee on Trade and Environment. The Ministerial Declaration setting the CTE’s terms of reference explicitly mentions Principle 12 as one of the parameters defining the Committee’s mandate.203 In addition, efforts to keep trade-restrictive environmental policies within strict bounds also found expression in the adoption of the Agreements on Sanitary and Phytosanitary Measures,204 Technical Obstacles to Trade,205 and Subsidies and Countervailing Measures.206 References to the need to conciliate environmental measures and trade also appear in a number of instruments adopted under the aegis of the Rio process or its aftermath, including Agenda 21,207 the Forest Principles,208 the UNFCCC,209 or the Biosafety210 and ABS Protocols211 to the CBD.

Regarding the jurisprudential relevance of Principle 12, although it has seldom been referred to explicitly in the case law,212 its components have featured prominently in disputes concerning trade and the environment. Of particular relevance are the decisions of WTO Panels and the Appellate Body on article XX of the GATT. This body of decisions addresses at the same time questions of protectionism (through the assessment of consistency with the ‘chapeau’ of article XX) and questions of extraterritoriality (through the assessment of the availability of letters (g), (b), and, more recently, (a) of article XX). As noted by Young in her chapter, unilateral environmental measures have been considered to be consistent with trade disciplines in their design (falling under the exceptions in letters (a), (b) and (g) of article XX) but not in their application (which has been found to breach the requirements of the chapeau213). These cases suggest that the ‘shoulds’ provided for in (p. 37) the first and second sentences of Principle 12 may have greater purchase in litigation than those appearing in its third and fourth sentences.

2.13.  Principle 13: Liability and compensation

As other principles of the Rio Declaration, Principle 13 can be seen as a crossroads where several considerations intersect. Its origins can be traced back to Principle 22 of the Stockholm Declaration, dealing with international liability regimes, which was an extension of the prevention principle stated in Principle 21. Principle 13 is also an extension of prevention (Principle 2) but, acknowledging the challenges involved in the development of liability regimes at the international level, it has both domestic and international legal dimensions. As such, it can also be seen as an extension of Principle 11 on environmental legislation and as a preface to Principle 14 concerning the relocation of dangerous activities, a question very present in the minds of delegates, after the Bhopal disaster in India. All these elements find expression in the wording of 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.

From a conceptual standpoint, the most meaningful distinction is between domestic and international liability regimes. In both cases, the call in Principle 13 was followed by some normative developments.

Regarding the domestic law component, it can be seen as a pragmatic acknowledgment of the main avenue (either tort or civil liability laws) through which transboundary damage is likely to be compensated. In her chapter in this commentary, M. Fitzmaurice refers to several instruments adopted at the domestic level and focusing on environmental liability, including the 2004 Environmental Liability Directive,214 the 1980 Comprehensive Environmental Response, Compensation and Liability Act (‘CERCLA’)215 or the 1990 Oil Pollution Act (‘OPA’).216 None of these pieces of legislation were developed as a result of the renewed call for environmental liability legislation, but they do illustrate the importance attached to this question in domestic law beyond the more general systems of torts and nuisance.

Conversely, the call made in Principle 13 did have some influence on international efforts. Indeed, starting in the 1990s, a number of liability-focused instruments, such as the 1993 Lugano Convention on Environmental Liability,217 the 1999 Liability Protocol to the Basel Convention,218 the 2003 Liability Protocol to both the Helsinki Convention and the Industrial Accidents Convention,219 the 2006 ILC Principles on the allocation of (p. 38) loss,220 and, more recently, the 2010 Nagoya-Kuala Lumpur Supplementary Protocol to the Biosafety Protocol221 have brought back the question of liability to a field dominated by prevention. Yet, at the time of writing, none of these instruments had entered into force. The failure of these treaties suggests that liability for environmental damage will remain limited to very specific areas, such as oil pollution or nuclear accidents, or, as noted previously, will be channelled through domestic legislation.

2.14.  Principle 14: Dangerous substances and activities

The introduction of Principle 14 in the Rio Declaration was influenced by two previous instruments, namely the 1989 Basel Convention and the 1991 Bamako Convention,222 which responded to cases of relocation of dangerous substances to developing countries for their cheap disposal. This acute North-South problem intervened within the broader context of calls for ‘environmental justice’ in developed countries and disasters such as the Bhopal tragedy in India. Of course, the debate did not have only an ethical basis. Important economic and health considerations were also involved. Increasingly demanding environmental regulation in developed countries provided indeed an incentive for some dangerous activities to be relocated to less regulated (de jure or de facto) contexts. In addition, developed countries were concerned about the ‘circle of poison’ problem, which refers to the presence of chemicals and substances that have been banned in developed countries in food imported from developing countries. The formulation of Principle 14 had to accommodate these different considerations, and it did so in a statement, which is more exhortatory than mandatory:

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.

However, as noted by M. Mbengue in his chapter in this volume, Principle 14 remains the most general statement regarding cooperation with respect to the relocation of dangerous substances and activities. The policy that finds expression in this principle has had significant normative impact as well as some influence in international jurisprudence.

Regarding its normative impact, although the reference to effective cooperation is quite open, in treaty practice such cooperation has taken the form of ‘prior informed consent’ procedures following the ‘shipment-by-shipment’ model of the Basel Convention, taken up in article 27 of the 1997 Joint Convention on Radioactive Waste223 or articles 7–10, 12 of the 2000 Biosafety Protocol, or a ‘substance-by-substance’ one, based on previous (p. 39) soft-law instruments,224 and which will find expression in the PIC Convention and in article 11 of the Biosafety Protocol. Mbengue also notes that the full expression of Principle 14, which could only be achieved so far in the ‘ban’ imposed by the Bamako Convention, also underpins the attempted 1995 amendment of the Basel Convention, banning exports of hazardous waste from OECD to non-OECD countries.225 This amendment has not yet entered into force but it remains an apposite example of how the policy expressed in Principle 14 has found normative expression.

Regarding the jurisprudential relevance of Principle 14, its underlying policy was referred to in a statement of CARICOM Heads of Government opposing the shipments of MOX fuel from the United Kingdom to Japan, through the Caribbean. This statement was referred to by Ireland in its request for provisional measures in the well-known MOX Plant case before the ITLOS.226 Mbengue also refers to other illustrations of the potential relevance of the policy of Principle 14, particularly one paragraph, rather neglected so far by commentators, of the ICJ’s Order on Provisional Measures in the Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica) where the Court links the prevention principle to the ‘plausible’ right not to be harmed by the activities of other States.227 This statement can be extended to Principle 14, which can be seen for this purpose as a manifestation of the prevention principle.

2.15.  Principle 15: Precaution

Principle 15 is a major example of how the Rio Declaration contributed to the development of international law. Precaution had already been formulated in previous instruments, particularly in the Bergen Declaration adopted in one of the regional preparatory conferences of the UNCED.228 The wording of Principle 15 had to be adjusted to take into account different concerns, such as the preference of the United States for the term ‘approach’ over that of ‘principle’ and the differential dimension advocated for by developing countries. The less precise wording eventually agreed upon left significant room for interpretation or, less optimistically, for uncertainty over its specific content:

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.

This formulation does not clarify whether States are required to regulate in the absence of full scientific certainty or only authorized to do so. In addition, the trigger (‘threats of serious or irreversible damage’) remains subject to divergent interpretations. The precautionary approach has also been referred to as a procedural rule shifting the burden of proof from the regulator (who would have to establish an actual risk) to the claimant (who would have to establish the absence of any risk). Despite the uncertainties surrounding (p. 40) precaution as a legal norm, its normative impact and jurisprudential relevance must not be underestimated.

The normative impact of precaution can be assessed by reference to three main categories of instruments. The first category concerns subsequent resolutions or declarations of principles where precaution has been expressly referred to, including paragraphs 70–4 of the 1995 Report of the CSD’s Expert Group,229 the preamble of the IDI 1997 Resolution on ‘Environment’ and Principle 13 of its Resolution on ‘Responsibility and Liability’,230 article 7 of the ILC 2001 Prevention Articles,231 or Principle 4 of the ILA 2002 New Delhi Declaration.232 The second category encompasses a variety of treaties relating to different substantive areas of international law, from freshwater resources,233 to climate change,234 to biodiversity,235 to chemical regulation,236 which make reference to the precautionary approach. Precaution has played a particular role in the protection of the marine environment, a role sufficiently important to consider it as a third category of instruments. Indeed, several treaties concluded after 1992 have taken precaution as their foundational basis, organizing a detailed regime to protect the marine environment or portions of it on the basis of precaution. These include the London Dumping Convention as restructured by the 1996 London Protocol,237 the 1992 OSPAR Convention238 and, to some extent, the 1995 UN Agreement on Straddling Fish Stocks.239

Precaution, in its different facets, has also played a significant role in international jurisprudence, although its acceptance has varied from one jurisdiction to another. The precautionary principle has been invoked a number of times before the ICJ. Yet, the only reference to precaution in a majority decision was made in the Pulp Mills case, where the Court stated that the precautionary approach may be relevant for interpretive purposes.240 A similarly restrictive approach has been followed in the case law of WTO panels and of the Appellate Body. Whereas in the EC-Hormones case the Appellate Body considered that the precautionary approach had been incorporated in article 5.7 of the SPS Agreement without further pursuing the inquiry,241 a subsequent panel constituted to hear the EC-Biotech case expressly stated that precaution had no customary basis.242 On the other hand, precaution has been given more room in the opinions of certain ICJ judges, including A. A. Cançado Trindade,243 the author of the chapter on precaution in the present commentary, as well as by the ITLOS and the ECtHR.244 In its Advisory (p. 41) Opinion on the Activities in the Area, the ITLOS Seabed Chamber referred specifically to Principle 15 from the perspective of its interpretive function:

the precautionary approach has been incorporated into a growing number of international treaties and other instruments, many of which reflect the formulation of Principle 15 of the Rio Declaration. In the view of the Chamber, this has initiated a trend towards making this approach part of customary international law.245

Significantly, the Chamber also recognized the differentiated operation of precaution depending on the context of the country applying the approach.246 Despite the increasing recognition of precaution, so far it has not operated as a governing primary rule of obligation at the international level. For examples of such a function, one must turn to the case law of the Court of Justice of the European Union (formerly European Court of Justice), which has applied the precautionary principle enshrined in the foundational treaties of the EU247 in several cases.248

2.16.  Principle 16: The polluter-pays principle

The polluter-pays principle as enshrined in Principle 16 of the Rio Declaration is envisioned as a parameter that should guide domestic legislation in the apportionment of the costs of pollution. The concerns of developing countries regarding the use of the polluter-pays principle as a constraint on development efforts led to its confinement to the domestic level as well as to a softer (‘should endeavour’) formulation:

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.

The principle has four main components, namely: (i) the internalization of cost as the main target; (ii) the identification of the cost-bearer; (iii) the methods of internalization; and (iv) the overall bounds within which such internalization has to take place.

Although the ‘internalization of costs’ is intended to prevent pollution and stimulate resource-efficiency, strictly speaking this principle ‘allocates’ the cost rather than specifically calling for its prevention. The ‘cost’ to be internalized can be characterized by reference to the economic concept of negative externality. Significantly, unlike other principles such as prevention or precaution, which may be considered to operate only with respect to externalities of a certain degree (significant, serious, irreversible harm), the ‘costs’ to be internalized under the polluter-pays principle are not qualified by any specific threshold. The second component concerns the identification of the polluter. Depending on the circumstances, it may be difficult to determine whether the producer or the consumer is the appropriate polluter. This has, in turn, implications for the method of internalization. The reference to the use of economic instruments, such as taxes or negotiable permits, confirms the aforementioned emphasis on ‘allocation’ rather than on ‘prevention’ of the damage, which could entail banning an activity altogether. Normally, the higher costs entailed (p. 42) by the tax or the requirement to hold a certain amount of permits will be transferred from the producer to the end consumer, which may cause distributional inequities in the same form as an indirect (rather than a direct) tax, which affects all equally irrespective of their income. Finally, and somewhat controversially, international trade and investment must not be ‘distorted’ whereas merely paying ‘due regard’ to the public interest seems to be sufficient.

Thus characterized, the polluter-pays principle has had significant normative influence not only at the domestic level but also as the architectural foundation of some treaty regimes (which must, in turn, be implemented domestically). The chapter by P. Schwartz surveys a variety of regulatory tools that have been used to internalize costs in the particularly important and wide-ranging area of decarbonization. She refers inter alia to five internalization techniques, namely emission standards, emission charges, emissions trading schemes, subsidies, and liability systems. Such techniques can be purely domestic or internationally-induced. By way of illustration, several Protocols to the LRTAP Convention provide for emission standards.249 The Montreal Protocol and the Kyoto Protocol provide for some form of allowance trading.250 There are two major regimes providing for the internalization of costs through liability arising from oil pollution251 or nuclear accidents.252 Importantly, the chapter by Schwartz addresses a dimension of cost internalization that was not—and is still not253—fully grasped in international environmental negotiations, namely the relations between cost internalization and international (p. 43) investment law. This is the area where an increasing number of international disputes have arisen in the last several years254 and where reference to the polluter-pays principle is undoubtedly relevant.

2.17.  Principle 17: Environmental impact assessment

Principle 17 addresses a technique that, after its introduction in the domestic law (namely the National Environmental Policy Act or ‘NEPA’) of the United States in 1970,255 has progressively gained ground not only in domestic law but also in regional and international law. As noted by N. Craik in his chapter in this volume, the negotiation process of Principle 17 was influenced by the adoption of the EIA Directive in 1985256 as well as, in 1991, of both a regional instrument (the Espoo Convention257) and an instrument governing the Antarctic.258 Principle 17 envisages EIAs as a ‘national instrument’:

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.

Significantly, the wording of Principle 17 does not limit its scope to a transboundary context. EIAs must be undertaken whenever an activity is ‘likely to have a significant adverse impact on the environment’ as such, including in a purely domestic context. The reference to ‘proposed activities… that… are subject to a decision of a competent national authority’ is intended to exclude policies, plans or programmes, which may nevertheless be subject to a ‘strategic environmental assessment’ (‘SEA’) under some legal frameworks.259 The identification of such activities typically follows two approaches, namely: a list identifying types of activities that are deemed by their very nature to require an EIA;260 or the conduct of a sort of preliminary assessment to determine whether an EIA is required.261

Since its introduction in the NEPA, the requirement to conduct an EIA has become one of the main environmental protection techniques (together with the creation of special areas). A number of treaties have established EIA requirements for activities likely to have a transboundary impact or to affect areas beyond national jurisdiction. Although both the Espoo Convention and the Madrid Protocol were concluded prior to the adoption of Principle 17 of the Rio Declaration, there is a clear connection between the formulation of the latter (based on the EC and Nordic drafts) and these two instruments. The requirement to conduct an EIA has also been introduced in article 14 of the CBD, further specified by a decision of the Conference of the Parties.262 EIAs have also been incorporated (p. 44) into some soft law guidelines, such as those adopted by the Arctic Council in 1997,263 or in codification efforts. Examples of the latter include article 5 of the 1997 IDI Resolution on ‘Environment’, devoted to EIA,264 or section 4(2)(c) of the ILA New Delhi Declaration, which refers to the conduct of EIAs as an expression of the precautionary principle.265

Regarding the jurisprudential relevance of the EIA requirement, in the Pulp Mills case, the ICJ recognized it as part of general international law,266 although it added some qualifications to its scope and contents. The Court considered EIAs as an extension of the prevention principle, stated in Principle 2, but limited its spatial scope to a transboundary context. However, in its Advisory Opinion on Activities in the Area, the ITLOS Seabed Chamber has considered instead that EIAs must also be conducted for activities in the global commons.267 Although the reasoning of the Chamber intervenes within the context of a treaty regime (the UNCLOS), the connection between prevention and EIA suggests that the latter should apply also beyond national jurisdiction, as does the former. The other qualification introduced by the ICJ in the Pulp Mills case concerns the specific content of the EIA. The Court reasoned that the specific content of the international norm requiring the conduct of an EIA is to be defined by domestic law.268 The treaties and soft-law instruments mentioned in the previous paragraph often specify the content of the EIA obligation. Whether the formal source of the international norm is custom or general principles of law, in both cases a body of practice is required for the norm to emerge (international practice or domestic practice transposable to the international plane). The conclusion of the ICJ is therefore debatable, and it should not be interpreted as stating that the norm has almost no content but that some aspects of a procedural nature (deadlines, format of the application, etc) are defined at the domestic level.

2.18.  Principle 18: Notification and assistance in case of emergency

Principle 18 states a norm that, in its core content, namely the duty to notify disasters and other emergencies, has customary grounding both as part of the prevention principle and, even before, as part of basic duties of good neighbourliness.269 But Principle 18 goes beyond this basic duty and adds a reference to assistance:

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 afflicted.

(p. 45) Thus, Principle 18 has two main components, notification in case of emergency and a duty of assistance. As noted by P. Okowa in her chapter in this commentary, the legal nature of each component is not the same. Whereas the first is solidly grounded in treaty and customary law, the second is merely exhortative in nature and is devolved to the ‘international community’. As for third States, Okowa refers to the survey of practice conducted within the framework of the ILC’s codification work on protection of persons in the event of disaster to conclude that, subject to what may be provided in treaty law, no such duty of assistance exists in the current state of customary international law.270 In both cases, however, what distinguishes Principle 18 from Principle 19 (to which it was linked in the preparatory work) is the nature of the trigger event, namely a ‘natural disaster or other emergencies’. This event is characterized in Principle 18 as events ‘likely to produce sudden harmful effects on the environment of those States’. The scope of the principle is therefore transboundary.

Regarding the normative impact of Principle 18, one must again make a distinction between the two components. The duty to notify in the event of emergency has significantly influenced treaty practice as well as codification efforts. The 1986 Early Notification Convention271 concluded shortly after the Chernobyl disaster is perhaps the most emblematic instrument, but there are several other global and regional treaties fleshing out this duty, including the 1992 UNECE Convention on Industrial Accidents,272 the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations273 or the 2005 ASEAN Agreement on Disaster Management,274 to name but a few examples. In addition, this duty has been elaborated upon in some codification efforts undertaken under the aegis of the ILC. Here, the question has been addressed in connection with the duty of prevention of environmental harm275 and, more recently, as part of its work on the protection of persons in the event of disaster.276

In addition to the duty to notify, a broader approach, focusing on the reduction of vulnerability and the organization of response, has developed in the context of the Hyogo Framework for Action adopted in 2005.277 This framework emphasizes questions of assistance. The type of financial and technical assistance envisaged in the Hyogo Framework is primarily intended to build resilience before disaster occurs. Thus, to this extent, it differs from the assistance contemplated in the second component of Principle 18. Aside from the Hyogo Framework, reference to assistance in case of disaster can be found in (p. 46) several other treaties, including the 1992 Convention on Industrial Accidents278 or 1992 UNECE Convention on Watercourses.279 Again, perhaps the most emblematic treaty in this regard was also a response to the Chernobyl disaster, namely the 1986 Convention on Assistance in Case of Nuclear Accident.280 Even when a duty of assistance is envisaged, its formulation remains generally flexible limiting its legal enforceability. This said, one must not overlook that developed States have as a rule provided significant assistance in case of emergency, as illustrated by the international response to the Indian Ocean Tsunami in 2004, the earthquake in Haiti in 2010 or the more recent earthquake in the Philippines in 2013.281

2.19.  Principle 19: Notification and consultation on activities with transboundary impact

Principle 19 was initially the first component of a principle proposed by EC countries at PrepCom IV which encompassed also Principle 18.282 Notification is not only required in the event of an emergency but, logically, it must also intervene in cases where a State plans to conduct certain activities that may pose significant risks of transboundary harm:

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.

Thus, unlike the notification contemplated in Principle 18, the one in Principle 19 must take place prior to the conduct of the relevant activities (and not after an emergency has occurred) and such notification aims at prompting consultations sufficiently in advance. Thus characterized, the duty to notify and consult is clearly an application of the obligation of cooperation, which, in turn, is an extension of the prevention principle. As noted by L. Boisson de Chazournes and K. Sangbana, it is as such firmly grounded in general international law,283 with particular relevance, historically, for the management of shared watercourses.284 Although the two components of Principle 19 (notification and consultation) each have their specific features, their impact on treaties and judicial decisions can be analysed together.

Many treaties can be mentioned as expressions of the duty to notify and consult. A major area of normative development is, of course, the law of international watercourses and, specifically, those treaties and provisions concerning the non-navigational uses of international watercourses. After years of codification work under the aegis of (p. 47) the ILC (and previously of the ILA), a UN Convention on the Non-Navigational Uses of International Watercourses was concluded in 1997 and entered into force in 2014.285 Article 12 requires notification of ‘planned measures which may have a significant adverse effect upon other watercourse States’. The duty is complemented by a duty not to authorize or pursue the relevant activity pending consultations.286 This treaty is emblematic of a large number of treaties concerning specific watercourses with similar or more sophisticated notification and consultation arrangements.287 Beyond the regulation of watercourses, other instruments give also expression to the duty to notify and consult, including the ILC Prevention Articles288 or the 1991 Espoo Convention discussed in connection with Principle 17.289

Regarding the jurisprudential relevance of the duties stated in Principle 18, it is possible to point to several cases, both old and new. In the 1957 Lake Lanoux arbitration between France and Spain concerning the diversion by the former of the waters of the River Carol, the tribunal noted that France could not be the sole judge of whether the works had an impact on Spain or not.290 In a similar vein, the ICJ noted in the Pulp Mills case that the duty to cooperate in good faith entailed that:

as long as the procedural mechanism for co-operation between the parties to prevent significant damage to one of them is taking its course, the State initiating the planned activity is obliged not to authorize such work and, a fortiori, not to carry it out.291

In some other cases, the content of the duty to cooperate has been specified by international tribunals. Examples include the affirmation of a duty to exchange information,292 jointly evaluate the environmental impact of the relevant activity293 or even consult with the secretariat of an applicable environmental treaty.294

2.20.  Principle 20: The role of women

Principle 20 opens a series of three principles recognizing the role of specific groups within the overall framework of sustainable development:

Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.

Although it is possible to see Principle 20 (as well as Principles 21 and 22) as extensions of Principle 10 (public participation), it would be more accurate to view it as a broad (p. 48) statement aimed at highlighting the position and the role of women in environmental management and development, one corollary (among others) of which is the need to ensure their ‘full participation’ in decision-making. As noted by C. Mahon, a focus on women was deemed necessary because in many societies, as a result of socioeconomic and cultural constraints, women perform domestic tasks such as food production, water collection, and gathering of wood for fire that brings them closer to the environment. They thus develop a particular knowledge of their environment and they are, at the same time, more exposed to environmental hazards. This position also calls for attention from a developmental perspective because the tasks performed by women tend to prevent them from accessing education and fully participating in decision-making. By addressing the role of women, Principle 20 captures their position and role in ‘environmental management’ and ‘development’ and call for both the integration of women and an improvement of their situation in decision-making.

The recognition of the role of women in Principle 20 had significant normative impact in subsequent international instruments. The wording of Principle 20 (the ‘vital role’ of women) features in the preamble of the CBD295 and a close variant (‘important role’) appears in the preamble of the UNCCD.296 Principle 20 is also one of the sources of the 2003 Protocol to the African Charter on Human and People’s Rights on the Rights of Women (2003),297 which refers in its preamble—somewhat inaccurately—to the ‘United Nations Plans of Action on the Environment and Development in 1992’. The link between Principle 20 and the Protocol can also be established through the influence of the former on several policy developments that also influenced the latter, including the outcome document of the aforementioned 1994 ICPD298 and the Platform for Action of the Fourth World Conference on Women held in Beijing in 1995.299 The role of women was also specifically recognized in the UN Millennium Declaration300 and, more recently, in the outcome document of the Rio 2012 Summit.301

Regarding its jurisprudential relevance, the close links of Principle 20 with the Convention on the Elimination of Discrimination against Women (‘CEDAW’)302 and, more broadly, with international human rights law suggests that it may be relevant for interpretive purposes. The Committee on the Elimination of Discrimination against Women has so far heard some twenty specific complaints.303 Although, to my knowledge, the Committee has not dealt with environment-related cases so far, the prohibition of discrimination against women remains potentially relevant from an environmental perspective given precisely the greater exposure of women to environmental hazards, particularly in developing countries.

(p. 49) 2.21.  Principle 21: The role of the youth

Much as Principle 20, Principle 21 recognizes the role of another specific group, the youth, in sustainable development:

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.

Whereas Principle 21 could be seen as an application of Principle 10 (public participation), again, this view would only capture part of it. Indeed, Principle 21 can also be seen as an extension of intergenerational equity, as contemplated by Principle 3, in that the youth is the most direct representative of future generations. As noted by M. J. Langer, in practical terms, Principle 21 aims at (i) fostering environmental education and awareness (a cultural change) and (ii) increasing participation of the youth in institutional processes as an expression of intergenerational equity. Pinned down to these two components, the exhortation enshrined in Principle 21 has indeed had some normative impact and jurisprudential relevance.

Regarding its normative impact, Langer refers to several treaties adopted in 1992 or after, including the UNFCCC,304 the CBD,305 and UNCCD,306 but also the Aarhus Convention,307 the Protocol on Water and Health to the Helsinki Convention,308 or the POP Convention,309 which all contain provisions on environmental education, awareness-raising, and participation. Of particular note are the processes launched within the context of the UNFCCC—the ‘United Nations Joint Framework Initiative on Children, Youth, and Climate Change’,310 and the CBD—the Global Youth Biodiversity Network (‘GYBN’),311 which both seek to institutionalize the input of youth organizations in the work of the conventions.

Moving to the Principle’s jurisprudential relevance, as with other principles, it is necessary to dissociate Principle 21 of the Rio Declaration as a source from its content. Although the Principle as such has not featured in the case law, it is possible to identify cases involving both the intergenerational equity and environmental education components mentioned above. Concerning the first, the cases referred to in the context of Principle 3 are also relevant in this context, particularly the decision of the Supreme Court of the Philippines in Minors Oposa granting jus standi to future generations represented by the present generation of children.312 Less well-known are the cases referred to by Langer in connection with environmental education,313 particularly the decision of the European Committee on Social Rights in Marangopoulos v. Greece314 where the State was found to (p. 50) be in breach of the European Social Charter because of its failure to provide sufficient environmental health education to persons living close to a lignite mine.

2.22.  Principle 22: Indigenous people and sustainable development

Principle 22 concerns the role of another specific group, indigenous people, which has received increasing attention in international human rights law, particularly after the conclusion of the 1989 ILO Convention no 169315 and, more recently, the 2007 UN Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).316 Principle 22 provides that:

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.

As noted by D. Shelton in her chapter in this commentary, indigenous peoples are highly integrated in the environment that they inhabit and, as a result, they have both developed a deep understanding of it while, at the same time, their way of life is particularly vulnerable to environmental change. The approach taken in Principle 22 is similar to that in Principle 20, highlighting their ‘vital role’ in both ‘environmental management’ and ‘development’ and calling for ‘effective’ (rather than ‘full’) participation in sustainable development. Shelton observes that in this statement the need for the recognition of indigenous peoples’ ‘rights’ (as opposed to their ‘identity, culture and interests’) remains elusive, particularly in connection with their entitlement to self-determination and their ancestral lands. The principle is therefore not clearly rights-based. Yet, subsequent developments have changed this situation and the rights of indigenous and tribal peoples are nowadays well established in treaties, policy instruments, and international jurisprudence.

Regarding first the normative impact of the Principle, a distinction must be made between the more progressive approach represented by the ILO Convention no 169, which eventually prevailed in practice, and the reluctant formulation of Principle 22 in its initial understanding, echoed by chapter 26 of Agenda 21, which laboriously avoids recognizing specific rights to land and self-determination. The CBD and the 2010 Nagoya Protocol on Access and Benefit Sharing were also influenced by Principle 22 in that they require the participation of indigenous people (their ‘approval and involvement’ and, in the Nagoya Protocol, their ‘prior informed consent’) in processes leading to the wider use of traditional knowledge.317 Yet, these instruments do not clearly articulate the recognition of indigenous peoples in terms of ‘rights’. For a rights-based approach one must look at the developments in international human rights law, particularly the UNDRIP, which largely supersedes the more reluctant approach embodied in the formulation of Principle 22, and the case law of the ICtHR and the African Commission, to which I now turn.318

(p. 51) In a stream of cases that goes from the 2001 Awas Tingni decision to the more recent 2012 Sarayaku case, the ICtHR has expanded the interpretation of Article 21 of the ACHR on the right to property to give specific protection to the relation between indigenous and tribal peoples and their traditional lands. Shelton notes by reference to the Saramaka case319 that this body of decisions recognizes not only the right of such peoples over their ancestral lands but also some participatory rights, including a share of the benefits of activities conducted in their lands. The African Commission has also affirmed the need to protect the rights of indigenous and tribal peoples. In the Endorois case, the Commission found that Kenya had violated the African Charter as a result of the measures adopted to remove the Endorois people from their ancestral land for environmental purposes.320 This case is also interesting as an illustration of potential conflicts between human rights and environmental measures (Kenya grounded its action on nature conservation considerations).

2.23.  Principle 23: The environment of oppressed peoples

Principle 23 can be seen as an extension of several principles of the Rio Declaration, particularly Principles 22 and 2. The term ‘peoples’ in Principle 23 encompasses that of ‘indigenous people’ in Principle 22 but goes well beyond it covering all peoples under oppression, domination or occupation:

The environment and natural resources of people under oppression, domination and occupation shall be protected.

The environment of these peoples is envisaged both as a resource and as their surroundings. The protection afforded is therefore not only to preserve the natural resources of these peoples from exploitation by the oppressing, dominating, or occupying power but also to protect the peoples from threats arising from the deterioration of their environment. As noted by M. Tignino, such protection is therefore similar to that offered to States under Principle 2 with the difference that, in the context of Principle 23, there is technically no transboundary element as the harm to the environment affects the oppressed, dominated, or occupied territory.

Regarding the normative impact of Principle 23, as with other principles of the Rio Declaration, Principle 23 only places in an environmental light a principle that had long been recognized in international practice, in instruments such as article 47 of the 1907 Hague Regulations,321 article 33 of the 1949 Geneva Convention IV,322 UNGA Resolution 1803(XVII) on ‘Permanent Sovereignty over Natural Resources’, common article 1 to the 1966 International Human Rights Covenants323 and, later, article 21 of the African Charter on Human and Peoples’ Rights. With respect to the latter, Tignino (p. 52) refers to a resolution of the African Commission interpreting article 21 in the light of the Rio Declaration:

in accordance with the Rio Declaration and African Charter principle of State sovereignty over natural resources, the State has the main responsibility for ensuring natural resources stewardship with, and for the interest of, the population and must fulfil its mission in conformity with international human rights law and standards324

Article 21 of the African Charter has been interpreted in a spirit similar to that of the right to property of indigenous and tribal peoples as understood by the ICtHR. Indeed, in the Ogoni case, the African Commission found that Nigeria had violated the rights afforded to individuals and peoples under the African Charter, including articles 16 (individual right to health), 21 (collective right to natural resources), and 24 (collective right to a generally satisfactory environment) as a result of the oil exploitation operations it had allowed and conducted in the land where the Ogoni lived.325 This case illustrates both the resource preservation and environmental protection dimensions contemplated in Principle 23. Aside from the decisions of human rights courts, environmental and resource depletion has arisen in a number of decisions both domestic and international. Tignino provides several examples, including the decision of a Singapore Court of Appeal in the 1956 De Bataafsche Petroleum v. War Damage Commission case, condemning the seizure and use by Japanese forces of Malaysian oil resources326 and three cases before the ICJ.327 Of the latter, only one (DRC v. Uganda) proceeded to the merits and the ICJ had the opportunity to confirm the customary grounding of the principle of permanent sovereignty over natural resources, although it considered that it did not apply to the specific facts of that case.328 Thus, there is sufficient evidence to conclude that the principle incorporated in Principle 23 is relevant from a jurisprudential perspective.

2.24.  Principle 24: The environment in armed conflict

Principle 24 is a broad statement of some basic principles of international humanitarian law formulated mainly in articles 35(3) and 55 of the 1977 Protocol I to the 1949 Geneva Convention,329 article 1 of the 1976 ENMOD Convention330 as well as in customary international law:331

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.

(p. 53) The first sentence hides a vivid debate during the preparatory committee concerning the opportunity to condemn the use of weapons of mass destruction, particularly nuclear weapons. The final formulation reflects the position of the United States and other industrialized States, which places the centre of gravity on sustainable development and avoids matters of disarmament. The second sentence contains two noticeable components. First, it refers to ‘international law’ therefore going beyond the law of armed conflict, which provides very limited explicit protection to the natural environment, and including international environmental law, human rights law, among others. Second, it calls for cooperation in the further development of international law on this question.

The latter component paved the way for some subsequent initiatives taken by the UNGA and by the ILC. As noted by M.-L. Tougas in her chapter in this commentary, in 1994 a codification initiative was conducted under the aegis of the International Committee of the Red Cross (‘ICRC’). This initiative led to the adoption of Guidelines for military manuals on the protection of the environment in times of armed conflict,332 which were subsequently endorsed by the UNGA. The ILC has also undertaken codification efforts on the effect of armed conflict on treaties and, more recently, on the protection of the environment ‘in relation to’ armed conflict. The first process led to the adoption in 2011 of Draft articles on the effects of armed conflicts on treaties, which set the presumption of continued application of environmental treaties despite the outburst of armed conflict.333 The second process is only starting and the ILC Rapporteur, Mrs Marie Jacobsson from Sweden, has framed it in a way so as to encompass not only the armed conflict phase but also the phases preceding and following armed conflict, potentially including the entire life-cycle of certain weapons of mass destruction.334

Unlike some other principles of the Rio Declaration, Principle 24 has been referred to in international jurisprudence not only in its substance but as such. In its Advisory Opinion on the Legality of Nuclear Weapons, the ICJ explicitly referred to Principle 24 to assert that:

Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. This approach is supported, indeed, by the terms of Principle 24 of the Rio Declaration.335

Other bodies have referred to the substance of Principle 24, without mentioning the principle as such. Examples are rare because, except for its intersections with international criminal law or human rights law, international humanitarian law—like international environmental law—has no specialized courts. Tougas refers in this connection to a decision of the Eritrea-Ethiopia Claims Commission which, in fact, dismissed the claim as not reaching the gravity threshold established in article 35(3) of the 1977 Protocol I.336 One could also refer, in this regard, to a 2000 report prepared by a Special Committee to advise the Prosecutor of the International Criminal Tribunal for the Former-Yugoslavia (p. 54) on whether to prosecute the NATO bombing campaign in Yugoslavia.337 The Committee noted that the demanding threshold of article 35(3) was unlikely to provide an adequate basis for prosecution.338 Principle 24 could also be relevant in the context of the application submitted by the Marshall Islands against India, Pakistan and the United Kingdom in connection with obligation to pursue in good faith and conclude negotiations leading to nuclear disarmament,339 which is in some respects an extension of the questions analysed by the ICJ in its 1996 advisory opinion.

2.25.  Principle 25: Peace, development and environmental protection

Principle 25 goes a step further than Principle 24 and, rather than seeking to protect the environment in armed conflict, it boldly states that development and environmental protection are interdependent with peace:

Peace, development and environmental protection are interdependent and indivisible.

Peace is thus seen as a fourth pillar of sustainable development or, more specifically, as a necessary basis for it. However, the relationship is one of interdependence as both environmental degradation and social and economic underdevelopment, particularly poverty, may be drivers of conflict. Principle 25 is clearly a policy statement. As such, it may be said to have no more (but no less) legal content than the concept of sustainable development. As noted by A. Bellal and G. Giacca in their chapter in this commentary, the main normative expressions of Principle 25 are to be found in the notion of environmental security as applied to the action of the United Nations Security Council and in efforts towards disarmament.

Regarding the first, the Security Council has a discretionary power under article 39 of the Charter to characterize an environment-driven event as a threat to international peace and security. Bellal and Giacca refer in this connection to the 2004 Report of the High Level Panel on Threats, Challenges and Change according to which ‘[t]he Security Council is fully empowered under Chapter VII of the Charter of the United Nations to address the full range of security threats with which States are concerned’.340 Yet, this power has not been explicitly exercised in an environmental context yet, although the Security Council has already addressed under Chapter VII the flow of refugees from conflict as a threat to peace,341 which could be extended to flows arising from environmental threats.

As for disarmament, environmental and development considerations could serve as additional reasons to pursue disarmament efforts from the broader perspective discussed in the context of Principle 24, namely environmental protection ‘in relation to’ armed (p. 55) conflict, including questions as to production, storage, stationing, transportation, and decommissioning, instead of the sole use through detonation. Disarmament is more broadly relevant to free resources that can be allocated to social and economic development.342 As noted in the previous section, the 2014 application of the Marshall Islands instituting proceedings before the ICJ against India, Pakistan, and the UK for breach of the obligation to pursue disarmament is also relevant for Principle 25, as it could bring its contents to bear in the context of an international dispute.

2.26.  Principle 26: International environmental dispute settlement

Principle 26 is a restatement of a customary principle of international law requiring States to settle their disputes peacefully:

States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations.

As noted by T. Stephens in his chapter in this commentary, the application of this general principle to environmental disputes entails some nuances. First, it is difficult to define precisely what is an ‘environmental dispute’ as disputes which apparently do not relate to the application of an environmental treaty or norm may nevertheless have environmental components because of their significance for natural resources, such as raw materials or watercourses. Second, environmental disputes call for their peaceful settlement not only as a matter of State interest but also to protect the environment per se. Indeed, whereas States are not required to reach a settlement and can leave their dispute unresolved as long as they remain within the bounds of peaceful means, the prevention of environmental harm calls for a more proactive obligation not to harm the environment per se irrespective of States’ interests. In line with Principles 2 and 25 of the Rio Declaration, the settlement of disputes in this context is not only a matter of ‘peace’ but also one of ‘environmental protection’. Third, the latter point is also important for the selection of the ‘appropriate means’, which may include mechanisms specifically tailored to the needs of environmental protection such as the so-called non-compliance procedures or NCPs. These three nuances must be kept in mind in analysing the normative impact and jurisprudential relevance of the restatement made in Principle 26.

The aftermath of the Rio Declaration saw significant developments in environmental dispute settlement. From a judicial perspective, developments such as the creation in 1993, within the ICJ, of a Special Chamber on Environmental Matters (which was never used),343 the establishment in of a similar Chamber within the ITLOS or the adoption by the PCA of a set of arbitration rules specifically targeting environmental and natural resource disputes,344 can all be seen as attempts to provide a proper forum to environmental disputes. From a non-judicial perspective, the ‘appropriate means’ envisioned in (p. 56) Principle 26 were shaped by the institutional innovations introduced by the 1987 Montreal Protocol in connection with the management of non-compliance,345 which later spilled over to many other multilateral environmental agreements.346 The non-adversarial nature of NCPs, which can be triggered by the non-complying State in an attempt to either seek assistance or justify its situation, highlights the preventive and mitigating objectives pursued by these mechanisms.

Concerning the jurisprudential relevance of Principle 26, as noted by Stephens, the principle does not seem to have been explicitly referred to in international litigation. This said, the obligation to settle environmental disputes peacefully lies at the roots of a growing body of environmental jurisprudence that spans virtually all areas of international law, from human rights and humanitarian law to the law of the sea, to international economic law concerning both trade and investment transactions. Several studies have been devoted to this body of decisions.347 For present purposes it will suffice to note that the specificities of environmental matters sometimes call for procedural adjustments, including a relaxation of the requirements on jus standi, adjustments to the burden and/or standard of proof, certain modalities for the provision of expert evidence and increased transparency in the proceedings.

2.27.  Principle 27: Cooperation in a spirit of global partnership

Principle 27 introduces an important, albeit broad, component into the Declaration namely a call for cooperation ‘in a spirit of global partnership’ among States and people to implement the principles of the Rio Declaration:

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.

In essence, this principle has three components. First, it calls for a broader form of cooperation than the one envisioned in Principles 14, 18, and 19. Such cooperation must take place between States and people. As noted by P. Sand in his chapter in this commentary, the drafters consciously avoided speaking of ‘peoples’, which may have raised controversial questions (much as for Principle 22) as to the type of cooperation envisaged. The term ‘people’ clearly refers to civil society at large and such is the way in which it will be subsequently understood. Second, such cooperation must aim at implementing the (p. 57) principles stated in the Declaration. Third, cooperation is also needed to ‘further’ develop ‘international law in the field of sustainable development’. As noted by Sand, this apparently innocuous wording hides the profound division between developed and developing countries, the former favouring the reference made in UNGA Resolution 44/228 to ‘international environmental law’ and the latter calling for the reference to ‘international law in the field of sustainable development’, which eventually prevailed. The nuance is therefore important and signals the position of the Rio Declaration as an instrument at a crossroads between environmental protection and development considerations.

Regarding the legal manifestations of Principle 27, Sand identifies two main concepts. The first are the so-called public-private partnerships or ‘PPPs’ for sustainable development, which developed over the 1990s and particularly in the 2000s, after the 2002 Johannesburg Summit gave them renewed impetus.348 The second is the concept of environmental trusteeship applied to the powers of States over nature and natural resources. This idea, which Sand traces back to the initiatives of Maurice Strong already at the time of preparatory work of the Stockholm Declaration, was explored by the UN on the impulsion of Secretary-General Kofi Annan349 and eventually abandoned.350 However, the idea has found fertile ground in some domestic legal systems through the ‘public trust doctrine’,351 and it also underpins the concept of ‘world heritage’ shaping the WHC, that of ‘common heritage of mankind’ shaping Part XI of the UNCLOS or the pool of plant genetic resources managed under the 2001 International Treaty on Plant Genetic Resources.352

As for the jurisprudential relevance of Principle 27, although it has not as such been referred to in judicial practice, the concept of a public trust has received some attention in cases both old (eg the 1893 Pacific Fur Seal Arbitration invoking the trust idea to assert the extended jurisdiction of the US over fur seals353) and new (eg the decision of the Supreme Court of Pennsylvania in Robinson Township v. Commonwealth using the concept of a public trust to invalidate a law facilitating hydraulic fracturing as a gas extraction method354).

3.  The lacunae of the Rio Declaration

The principles briefly discussed in the foregoing section cover vast ground, particularly when understood in the light of previous and subsequent normative developments. Yet, the Rio Declaration failed to address several matters or, at least, to address them explicitly. (p. 58) Before a more general assessment of the Rio Declaration can be attempted in the last section of this preliminary study, it is useful to mention three main questions that were not sufficiently covered by the declaration.

A lacuna of the declaration that came under criticism from contemporary observers is the avoidance of any clear and explicit reference to individual rights.355 Although several principles, including Principles 1, 10, and 22, implicitly refer to human rights, the wording carefully avoids recognizing explicitly a human right to an environment of a certain quality or a human right to environmental participation or the rights of indigenous peoples. Despite its importance, this lacuna has been significantly covered by subsequent developments in international human rights practice. As discussed in the relevant chapters of this commentary, human rights courts and treaty bodies have recognized some environmental content (both substantive and procedural) as part of general human rights. Moreover, in 1998 a specific treaty on environmental participation (the aforementioned Aarhus Convention) was concluded under the aegis of the UNECE and, in 2007, the UN General Assembly adopted an important resolution on the rights of indigenous peoples, the UNDRIP. In this regard, the wording of the declaration has been clearly overtaken by subsequent practice and the declaration as such must be seen merely as a step or a moment in the crystallization of the now extremely important connection between human rights and environmental protection.

Another lacuna concerns the key issue of finance. The importance of the topic and the tortuous negotiation process of the chapter on finance of Agenda 21356 make the absence of a clear reference (let alone a principle) to finance in the declaration all the more conspicuous. Although financial matters are mentioned in Principle 7 (CBDR) and they are arguably implicit in Principle 9 (technology transfer), it is difficult to explain the absence of a specific principle on a matter as important as finance other than by the political divide on this matter between developed and developing countries. Of course, a principle on finance may not have performed any particular function or, at least, not an effective one in practice. Negotiations on financial issues are a major subject of debate in all international conferences, whether environmental or other. However, a restatement of the basic position of international law in this matter would have been welcome and useful to address questions as controversial as ‘conditionality’ in financial assistance,357 ‘loss and damage’ in the context of climate change negotiations,358 the role of the private sector359 or, more generally, the relations between general official development aid and specifically environmental financial assistance.

The third lacuna concerns most environmental instruments so far, including the Outcome document of the Rio 2012 Summit, namely the absence of any reference to investment law.360 Although Principle 16 specifically states that cost internalization (p. 59) measures must not distort trade and investment, the declaration does not contain a principle similar to Principle 12 (concerning trade law and environmental measures) for investment law. However, both environmental and development policies, which entail regulatory change (either regulation or deregulation) are being increasingly challenged before investment arbitration tribunals on the grounds that they are in breach of bilateral investment treaties (‘BITs’) or investment chapters in bilateral or multilateral trade agreements.361 This important question is only now starting to attract the attention it deserves from policy-makers,362 particularly thanks to the work of organizations such as the UNCTAD,363 the OECD364 or the International Institute for Sustainable Development.365 Yet, other organizations, including the UNEP, have not yet fully grasped the importance of investment ‘law’ in the move to a green economy they actively advocate for. Even for those organizations focusing on trade, it would be important to integrate the idea that the very same environmental measure can come across both trade and investment disciplines366 and consistency with one does not necessarily entail consistency with the other.367

In addition to the three areas identified, one could also refer to other lacunae in the Rio Declaration, such as the absence of references to the status of certain resources such as common areas, common heritage of mankind, common concern of mankind, or shared natural resources, which are important distributional or ‘balancing’ concepts in international environmental law. But despite these and other potential lacunae, one must not underestimate the importance and reach of the Rio Declaration as the expression of environmental protection in the form of both a ‘branch’ and a ‘perspective’ influencing, much like development law, all areas of international regulation. At this point in this preliminary inquiry, one may ask whether the Rio Declaration could, to an extent to be determined, operate as a constitutional instrument.

(p. 60) V)  Concluding Remarks: the Unlikely Constitution

The Rio Declaration cannot be considered as a ‘constitutional’ instrument in the ordinary meaning of this term. It is neither a foundational norm (Grundnorm), understood as a norm giving validity to subsequent norms, nor a ‘higher law’, from the perspective of legal hierarchy. Moreover, it has no ‘organic’ dimension, as it does not lay the foundations of institutions capable of organizing international activity regarding sustainable development. Yet, if article 2 of the United Nations Charter and, more specifically, the elaboration of its principles in UNGA Resolution 2625 (XXV)368 can to some extent be seen as having a constitutional dimension,369 a similar argument can be made for the Rio Declaration.

As noted earlier in this preliminary study, the Rio Declaration is the only international instrument adopted by consensus that brings together, around a common backbone, most foundational principles of international environmental law (the ‘environment set’) placing them in a developmental perspective (the ‘development set’), in an attempt to conciliate them with socio-economic development. Importantly, the environment and the development sets are conciliated through a set of principles (the ‘differentiation set’) in a manner that, although it seemed skewed to many observers at the time of the UNCED, represents a fair balance in hindsight. Such balance is placed within the broader context of peace and conflict resolution as understood in the Charter of the United Nations.

Thus, the term ‘constitutional instrument’ can only be used for the Rio Declaration if it is intended to highlight its emblematic or representative character of the main principles and policies organizing our relations to the environment. No other international instrument of the same standing and adopted by consensus brings these principles and policies together at once; and no other instrument provides a sufficient basis to understand such principles and policies not only as the foundations of a ‘branch’ but also as the expression of a ‘perspective’, increasingly noticeable and important in all areas of international regulation. The chapters in this commentary spell out these two dimensions in great detail by referring to the legal expression of each principle of the Rio Declaration, whether in environmental instruments or beyond.

VI)  Select Bibliography

  • Books

  • Campiglio, L., Pineschi, L., Siniscalco, D., and Treves, T., The Environment after Rio: International Law and Economics (London/Leiden: Graham & Trotman/Martinus Nijhoff 1994).
  • Chasek, P. and Wagner, L. M., The Roads from Rio: Lessons Learned from Twenty Years of Multilateral Environmental Negotiations (London: Routledge 2012).
  • (p. 61) Dodds, F., Strauss M., and Strong, M. F., Only One Earth: The Long Road via Rio to Sustainable Development (London: Routledge 2012).
  • Grubb, M., The ‘Earth Summit’ Agreements: An Analysis of the Rio ’92 UN Conference on Environment and Development (London: Earthscan 1993).
  • Halpern, S. L., United Nations Conference on Environment and Development: Process and documentation. Academic Council for the United Nations System (ACUNS) reports and papers, no 2, 1993, available on <http://www.ciesin.org/docs/008-585/unced-home.html> (accessed on 20 April 2014).
  • Holmberg, J., Thomson, K., and Timberlake, L., Facing the Future: Beyond the Earth Summit (London: Earthscan 1993).
  • Johnson, S., The Earth Summit: the United Nations Conference on Environment and Development (UNCED) (London/Leiden: Graham & Trotman/Martinus Nijhoff 1992).
  • Lafferty, W. M. and Eckerberg K., (eds), From the Earth Summit to Local Agenda 21: Working Towards Sustainable Development (London: Earthscan 1998).
  • Schrijver, N., The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (Leiden: Martinus Nijhoff 2008).
  • Singhvi, L.M., A Tale of Three Cities: The 1993 Rede Lecture and Related Summit Declarations (Cambridge University Press 1996).
  • Sjöstedt, G., Spector, B. I., and Zartman, I. W., Negotiating International Regimes: Lessons Learned from the United Nations Conference on Environment and Development (UNCED) (London/Leiden: Graham & Trotman/Martinus Nijhoff 1994).
  • Thomas, C. (ed), Rio: Unravelling the Consequences (London: Routledge 1994).
  • Articles and chapters

  • Adede, A. O., ‘The Treaty System from Stockholm (1972) to Rio De Janeiro (1992)’ (1995/1996) 13 Pace Environmental Law Review 33.
  • Adede, A. O., ‘The Road to Rio’, in Campiglio et al (eds) The Environment After Rio: International Law and Economics (London/Leiden: Graham & Trotman/Martinus Nijhoff 1994) 3.
  • Baker, B., ‘Environmental Controversies and Compromises at the Rio Conference’ (1992/1993) 2(2) Currents: International Trade Law Journal 45.
  • Batt, J. and Short, D. C., ‘The Jurisprudence of the 1992 Rio Declaration on Environment and Development: A Law, Science, and Policy Explication of Certain Aspects of the United Nations Conference on Environment and Development’ (1992/1993) 8 Journal of Natural Resources & Environmental Law 229.
  • Bekhechi, M.A., ‘Le droit international à l’épreuve du développement durable: Quelques réflexions à propos de la Déclaration de Rio sur l’environnement et le développement’ (1993) 59 Hague Yearbook of International Law 59.
  • Beyerlin, U., ‘Rio-Konferenz 1992: Beginn einer neuen globalen Umweltrechtsordnung?’ (1994) 54 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 124.
  • Boon, Foo Kim, ‘The Rio Declaration and Its Influence on International Environmental Law’ (1992) Singapore Journal of Legal Studies 347.
  • Cropper, A., ‘Unsaid ‘92’ (1992) 1 Review of European Community & International Environmental Law 314.
  • Doumbe-Bille, S. and Kiss, A.-Ch., ‘Conférence des Nations Unies sur l’Environnement et le Développement (Rio De Janeiro-juin 1992)’ (1992) 38 Annuaire français de droit international 823.
  • Esty, D. C., ‘Beyond Rio: Trade and the Environment’ (1993) 23 Environmental Law 387.
  • Freestone, D., ‘The Road from Rio: International Environmental Law After the Earth Summit’ (1994) 6 JEL 193.
  • Getches, D. H., ‘The Challenge of Rio’ (1993) 4 Colorado Journal of International Environmental Law and Policy 1.
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Footnotes:

Harold Samuel Professor of Law and Environmental Policy, University of Cambridge, United Kingdom.

Commission on Sustainable Development, Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, Geneva, Switzerland, 26–8 September 1995 (‘Report-principles’); United Nations Secretary-General, Rio Declaration on Environment and Development. Report of the Secretary-General, 10 February 1997, UN Doc E/CN.17/1997/8 (‘UNSG Report’); United Nations Department of Social and Economic Affairs, Division for Sustainable Development, Review of implementation of Agenda 21 and the Rio Principles, December 2011 (‘UNDESA Report’).

See section III.3 of this chapter.

For the account of the chairman of the Preparatory Committee, who also chaired, at the very end of PrepCom IV, the meeting of the informal contact group that drafted the final version of the Declaration, see Koh, T. T.-B., ‘UNCED Leadership: A Personal Perspective’, in Sjösted, G. et al (eds), Negotiating International Regimes: Lessons Learned from the United Nations Conference on Environment and Development (Graham & Trotman 1994), 165–9.

Report of the United Nations Conference on Environment and Development. Rio de Janeiro 3–14 June 1992, vol 2, Proceedings of the Conference, UN Doc A/CONF.151/26/Rev.1. On the UNCED see generally Johnson, S., The Earth Summit. The United Nations Conference on Environment and Development (UNCED) (Graham & Trotman/Martinus Nijhoff 1993).

On the Stockholm Conference see Kiss, A. and Sicault, D., ‘La Conférence des Nations Unies sur l’environnement (Stockholm, 5–16 June 1972)’ (1972) 18 Annuaire français de droit international 603; Kennet, K., ‘The Stockholm Conference on the Human Environment’ (1972) 48 International Affairs 33; Sohn, L. B., ‘The Stockholm Declaration on the Human Environment’ (1973) 14 HILJ 423.

Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002 (UN Doc A/CONF.199/20), in particular Resolution 2 (‘Plan of Implementation of the World Summit on Sustainable Development’).

The Future We Want, 11 September 2012, UN Doc A/RES/66/288.

This section draws upon Viñuales, J. E., ‘The Rise and Fall of Sustainable Development’ (2013) 22 RECIEL 3.

The stream of work of the Stockholm Preparatory Committee which led to the drafting and adoption of the Stockholm Declaration was prompted by a recommendation made in a 1970 Report from the UN Secretary-General calling for a statement of ‘rights and obligations of citizens and Governments with regard to the preservation and improvement of the human environment’, UN Doc A/CONF.48/PC/2, para 16, cited in Sohn, ‘The Stockholm Declaration on the Human Environment’, 426.

10  See Virally, M., ‘Droit international et décolonisation devant les Nations Unies’ (1963) 9 Annuaire français de droit international 509.

11  ‘Permanent Sovereignty over Natural Resources’, 14 December 1962, UN Doc A/RES/1803/XVII. References to the entitlements of States over their natural resources appeared already in earlier resolutions, such as UNGA Resolution 523 (VI) (12 January 1952), UNGA Resolution 626 (VII) (21 December 1952), and UNGA Resolution 1314 (XIII) (12 December 1958). See Gess, K., ‘Permanent Sovereignty over Natural Resources’ (1964) 13 ICLQ 398.

12  See eg the accounts of Pallemaerts, M., ‘International Environmental Law from Stockholm to Rio: Back to the Future?’ (1992) 1 RECIEL 254; Mann, H., ‘The Rio Declaration’ (1992) 86 Proceedings of the American Society of International Law 405; Wirth, D. A., ‘The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa’ (1995) 29 Georgia Law Review 599.

13  World Charter for Nature, 28 October 1982, UN Doc A/RES/37/7 (‘World Charter for Nature’).

14  Development considerations were very present in the run-up to Stockholm. Two indications, among others, of the strength of the development debate can be found in the UNGA Resolution ‘Development and Environment’, 20 December 1971, UN Doc 2849 (XXVI) and the Founex Report on Development and Environment (1971), available at: <http://www.stakeholderforum.org> (accessed on 20 April 2014).

15  ‘Action Plan for the Human Environment’, 16 June 1972, UN Doc A/CONF 48/14, 10–62.

16  ‘Institutional and financial arrangements for international environmental cooperation’, 15 December 1972, UN Doc A/RES/2997/XXVII (‘Resolution 2997’).

17  See Caldwell, L., International Environmental Policy (Duke University Press 1996), 95–7.

18  Interview Gro Harlem Brundtland, March 2004, referred to in Selin, H. and Linner, B.-O., ‘The Quest for Global Sustainability: International Efforts on Linking Environment and Development’, CID Graduate Student and Postdoctoral Fellow Working Paper no 5 (January 2005), 47, available at: <http://www.hks.harvard.edu> (accessed on 20 April 2014).

19  Report of the World Commission on Environment and Development, Our Common Future, 10 March 1987 (‘Our common future’ or ‘Brundtland Report’).

20  International Union for the Conservation of Nature and Natural Resources (IUCN), United Nations Environment Programme (UNEP) and World Wildlife Fund (WWF), World Conservation Strategy: Living Resource Conservation for Sustainable Development (IUCN, UNEP, and WWF, 1980) available at: <http://data.iucn.org/dbtw-wpd/edocs/WCS-004.pdf> (accessed on 20 April 2014).

21  The concept of ‘eco-development’ was advanced as part of the preparation of the so-called ‘Founex II’ conference, held in 1974. The project paper by Ignacy Sachs can be found in the collection of papers of Maurice Strong (IV. UN Conference on the Human Environment/UN Environment Programme years: 1970–1975, Series III. UNEP file: 1968 Jan-1975 Dec, Subseries B), donated by Strong himself to the Environmental Science and Public Policy Archives, Harvard University. A further elaboration of this concept can be found in Glaeser, B. (ed), Ecodevelopment: Concepts, Projects, Strategies (Pergamon Press 1984), which includes a preface by Sachs.

22  The concept of ‘green economy’ is of more recent vintage. Its origins are usually traced back to Pearce, D. W., Markandya, A., and Barbier, E. B., Blueprint for a Green Economy (London: Earthscan 1989). The ‘blueprints’ offered by the authors are, however, embedded within the concept of sustainable development and can be seen as an interpretation of it. A modernized version of the green economy concept appears in Barbier, E., A Global Green New Deal: Rethinking the Economic Recovery (Cambridge University Press 2010) as well as in UNEP, The Green Economy Report—A Synthesis for Policy Makers (UNEP 2011).

23  ‘United Nations Conference on Environment and Development’, 22 December 1989, UN Doc A/44/228 (‘Enabling resolution’).

24  United Nations Framework Convention on Climate Change, 9 May 1992, 31 ILM 849 (‘UNFCCC’).

25  Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 11 December 1997, 2303 UNTS 148 (‘Kyoto Protocol’).

26  Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (‘CBD’).

27  Cartagena Protocol on Biosafety to the Convention on Biological Diversity, (2000), 29 January 2000, 39 ILM 1027 (‘Biosafety Protocol’).

28  United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, UN Doc A/AC.241/15/Rev. 7 (1994), 17 June 1994, 33 ILM 1328 (‘UNCCD’).

29  Agreement for the Implementation of the Provisions of the United Nations Conventions 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, 4 August 1995, 2167 UNTS 88 (‘Fish Stocks Agreement’).

30  Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998, 2244 UNTS 337 (‘PIC Convention’ or ‘Rotterdam Convention’).

31  UNEP, Global Environmental Outlook 5: Environment for the Future We Want (UNEP 2012), 464, Figure 17.1.

32  UNGA Resolution S/19-2, 28 June 1997, Annex, ‘Programme for the Further Implementation of Agenda 21’.

33  See Report of World Summit on Sustainable Development in Johannesburg (South Africa), 26 August to 4 September 2002. UN Doc A/CONF.199/20, 1, 2002, Resolution 1: ‘Political Declaration’ and 6, Resolution 2: ‘Plan of Implementation of the World Summit on Sustainable Development’.

34  See Andonova, L. and Levy, M., ‘Franchising Governance: Making Sense of the Johannesburg Type II Partnerships’, in Schram Stokke, O. and Thommessen, Ø.B. (eds), Yearbook of International Co-operation on Environment and Development (Earthscan 2004), 19.

35  ‘Millennium Declaration’, 13 September 2000, UN Doc A/RES/55/2.

36  The Future We Want, 11 September 2012, UN Doc A/RES/66/288.

37  The Future We Want, para 88.

38  The Future We Want, paras 245–51. At the time of writing, the work of the ‘Open Working Group on Sustainable Development Goals’ established to define these goals was still in progress. The document is expected to be elaborated before the end of July 2014. See <http://sustainabledevelopment.un.org/owg.html> (accessed on 1 May 2014).

39  The Future We Want, para 85(e). The ‘High-Level Forum for Sustainable Development’ held its first session in September 2013 and will meet annually. The next session is scheduled for June–July 2014. Sessions include a ministerial segment meeting for two days at the end of each session. See <http://sustainabledevelopment.un.org/index.php?menu=1556> (accessed on 1 May 2014).

40  The Future We Want, para 38. The United Nations Statistical Commission is in charge of this portfolio. So far, a number of reports have been elaborated, including a report by three distinguished academics, a note by the UN Secretary-General as well as, more recently, a background document surveying existing practices. See <http://unstats.un.org/unsd/broaderprogress/progress.html> (accessed on 1 May 2014).

41  See eg Report of World Summit on Sustainable Development in Johannesburg, ‘Political Declaration’, para 11.

42  The Future We Want, para 2 (italics added).

43  ‘Development and Environment’, para 11 (italics added).

44  ‘Our common future’, ch 12, s 5.2. para 85. For a detailed procedural history of the Rio Declaration see Handl, G., ‘Rio Declaration on Environment and Development’, United Nations Audiovisual Library of International Law (2012), available at: <http://legal.un.org/avl/ha/dunche/dunche.html> (accessed on 1 May 2012).

45  ‘Our common future’, ch 12, s 5.2, para 86. For further detail see Munro, R. D. (Chairman) and Lammers, J.G. (Rapporteur), Environmental Protection and Sustainable Development. Legal Principles and Recommendations Adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development (Graham & Trotman/Martinus Nijhoff 1987).

46  ‘Enabling resolution’, para 15(d).

47  See UN Doc A/CONF.151/PC/WG.III/4. The IUCN has pursued work on a ‘Draft Covenant’, which now has several editions. See IUCN, Draft International Covenant on Environment and Development (4th edn, IUCN 2010).

48  Kiss, A., ‘The Rio Declaration on Environment and Development’, in Campiglio, L. et al (eds), The Environment after Rio: International Law and Economics (Graham & Trotman 1994) 55, at 55.

49  See the account by Koh, ‘UNCED Leadership: A Personal Perspective’. For a structured account of developments in each setting see Chasek, P., ‘The Story of the UNCED Process’, in Sjösted, G. et al (eds), Negotiating International Regimes: Lessons Learned from the United Nations Conference on Environment and Development (Graham & Trotman 1994) 45 (as part of the team of the Earth Summit Bulletin, Chasek reported in real time the developments both in the formal and the informal meetings over the PrepCom).

50  UN Doc A/46/48, sub-paragraph (ii) (italics added). This point is highlighted by Sand, P., ‘International Law on the Agenda of the 1992 “Earth Summit”’ (1992) 3 Colorado Journal of International Environmental Law and Policy 343, 347.

52  Chairman’s consolidated draft entitled ‘Earth Charter[:][/] The Rio de Janeiro Declaration on Environment and Development’, UN Doc A/CONF.151/PC/WG.III/L.8/Rev.1 and Add. 1 and 2 (‘L.8’).

53  Foo Kim Boon, ‘The Rio Declaration and its influence on international environmental law’ (1992) Singapore Journal of Legal Studies 347, 348.

54  Kovar, J., ‘A Short Guide to the Rio Declaration’ (1993) 4 Colorado Journal of International Environmental Law and Policy 119, 123 (Kovar worked for the Office of the Legal Adviser of the US State Department).

56  UN Doc A/CONF.151/PC/WG.III/L.21 (‘L.21’), suggesting that the declaration should be a ‘prologue to Agenda 21’.

57  See the chapter on the preamble by Francioni in this commentary. See also Ling, C.Y., The Rio Declaration on Environment and Development: An assessment (Third World Network 2012), 24–8; Kovar, ‘A Short Guide to the Rio Declaration’, 122–4.

58  This document, containing 13 principles, is summarized in Earth Summit Bulletin, vol 1, no 1.

59  ‘Rio de Janeiro Charter/Declaration on Environment and Development’, UN Doc A/CONF.151/PC/WG.III/L.20/Rev.1 (‘L.20’).

60  See also the draft presented by: the United States, UN Doc A/CONF.151/PC/WG.III/L.21 (‘L.21’); Japan, ‘Rights and Obligations’, UN Doc A/CONF.151/PC/WG.III/L.22 (‘L.22’); Canada, UN Doc A/CONF.151/PC/WG.III/L.23 (‘L.23’); Australia, UN Doc A/CONF.151/PC/WG.III/L.24 (‘L.24’); EC countries, ‘Elements for the Earth Charter’, UN Doc A/CONF.151/PC/WG.III/L.25 (‘L.25’); Nordic countries, ‘Earth Charter. Elements for Consideration’, UN Doc A/CONF.151/PC/WG.III/L.27 (‘L.27’); ‘Proposal submitted by Denmark and the United Kingdom of Great Britain and Northern Ireland on the basis of the work of several non-governmental organizations from around the world’, UN Doc A/CONF.151/PC/WG.III/L.28 (‘L.28’).

61  Sanwal subsequently published an illuminating article on the conceptual structure of the Rio Declaration, which I will discuss later in this chapter. See Sanwal, M., ‘Sustainable Development, the Rio Declaration and Multilateral Cooperation’ (1993) 4 Colorado Journal of International Environmental Law and Policy 45.

62  Koh, ‘UNCED Leadership’, 168; Kovar, ‘A Short Guide to the Rio Declaration’, 122; Ling, The Rio Declaration, 10.

63  ‘Principles on general rights and obligations. Draft principles proposed by the Chairman. Rio Declaration on Environment and Development’, 2 April 1992, UN Doc A/CONF.151/PC/WG.III/L.33/Rev.1 (‘L.33’).

64  Report of the United Nations Conference on Environment and Development. Rio de Janeiro 3–14 June 1992, vol 2, Proceedings of the Conference, UN Doc A/CONF.151/26/Rev.1 (vol 2) (‘UNCED vol 2’), ch III, section A, para 10.

65  The United States made interpretive statements to Principles 3, 7, 12 and 23, whereas France did so for Principle 22. See UNCED vol 2, ch III, section B, paras 16, 21, and 22.

66  Kiss, The Rio Declaration, 63–4. For a survey of views by different political figures see Panjabi, R. K. L., ‘From Stockholm to Rio: A Comparison of the Declaratory Principles of International Environmental Law’ (1992–1993) 21 Denver Journal of International Law and Policy 215, 273–6.

67  See eg Mann, ‘The Rio Declaration’, 409; Pallemaerts, ‘Back to the Future?’, 256; Wirth, ‘Two Steps Forward and One Back’, 648.

68  See eg Pathak, R. S. and Jaitly, A., ‘Rio Declaration—Economic Issues for Developing Countries’ (1992) 1 RECIEL 267, at 267; Porras, I., ‘The Rio Declaration: A New Basis for International Co-operation’ (1992) 1 RECIEL 245, 252; Sanwal, ‘Sustainable Development’, 48–9.

69  Sanwal, ‘Sustainable Development’.

70  Kiss, ‘The Rio Declaration’. The view expressed by Kiss is a summary of the position followed in a broader article co-authored with S. Doumbe-Bille: Kiss, A. and Doumbe-Bille, S., ‘La Conférence des Nations Unies sur l’environnement et le développement (Rio de Janeiro-juin 1992)’ (1992) 38 Annuaire français de droit international 823.

71  Sanwal, ‘Sustainable Development’, 48.

72  Sanwal, ‘Sustainable Development’, 49–51.

73  UNGA Resolution 3201 (S-VI), ‘Declaration on the Establishment of a New International Economic Order’, 1 May 1974, UN Doc A/RES/S-6/3201. On the principles of the NIEO see ‘Progressive Development of the Principles and Norms of International Law relating to the New International Economic Order’, Report of the Secretary-General, 23 October 1984, UN Doc A/39/504/Add.1.

74  For a review of the main scientific contributions that catalysed the environmental movement see Grinevald, J., La Biosphère de l’Anthropocène. Climat et pétrole, la double menace. Repères transdiciplinaires (1824–2007) (Georg 2007), 115ff.

75  See eg Carson, R., Silent Spring (Houghton Mifflin 1962); Boulding, K. E., ‘The Economics of the Coming Spaceship Earth’, in Jarrett, H. (ed), Environmental Quality in a Growing Economy (John Hopkins University Press 1966), 3–14; Nicholson, M., The Environmental Revolution: A Guide for the New Masters of the World (Hodder & Stoughton 1969); Commoner, B., The Closing Circle: Nature, Man, and Technology (Alfred Knopf 1971); Meadows, D. H. et al, The Limits to Growth (Universe Books 1972).

76  See eg Odum, E. P., Fundamentals of Ecology (3rd edn, Sounders 1971).

77  See eg Georgescu-Roegen, N., The Entropy Law and the Economic Process (Harvard University Press 1971).

78  See eg White, L., ‘The historical roots of our ecological crisis’ (1967) 155 Science 1203; Lovelock, J., GAIA: A New Look at Life on Earth (Oxford University Press 1979).

79  See eg Falk, R., This Endangered Planet: Prospect and Proposals for Human Survival (Random House 1971).

80  UNEP, Global Environment Outlook 5. Environment for the Future We Want (2012), ch 17, 464 and 466.

81  Selin and Linner, The Quest for Global Sustainability’, 35–6.

82  See the discussion of A. Kiss’ model in section II) 2 of this chapter.

83  Virally, M., ‘Où en est le droit international du développement?’ (1975) Revue juridique et politique: Indépendance et coopération 279, 282 (translation).

84  Virally, ‘Où en est le droit international du développement?’, 279–80.

85  Sanwal, ‘Sustainable Development’, 49.

86  International Law Commission, Draft articles on the prevention of transboundary harm from hazardous activities (2001), GAOR A/56/10 (‘ILC Prevention Articles’).

87  Institut de Droit International, Resolution on ‘Environment’ (Rapporteur L. Ferrari Bravo) (‘IDI—Environment’), Resolution on ‘Responsibility and Liability under International Law for Environmental Damage’ (Rapporteur F. Orrego Vicuña) (‘IDI—Responsibility’), Resolution on ‘Procedures for the Adoption and Implementation of Rules in the Field of Environment’ (Rapporteur F. Paolillo) (‘IDI—Procedures’), all adopted at the Strasbourg Session (1997).

88  International Law Association, ‘New Delhi Declaration of Principles of International Law Relating to Sustainable Development’, 2 April 2002 (‘New Delhi Declaration’). This declaration was followed by an instrument adopted by the ILA Committee on International Law on Sustainable Development, Resolution no 7/2012, Annex: ‘2012 Sofia Guiding Statements on the Judicial Elaboration of the 2002 New Delhi Declaration of Principles of International Law Relating to Sustainable Development’.

89  Report-principles, 26–28 September 1995 (this report must be seen as an attempt at codification but it also surveys, when appropriate, the impact of the Rio Principles in the three years following its adoption).

90  UNSG Report, 10 February 1997, UN Doc E/CN.17/1997/8.

91  UNDESA Report, Review of implementation of Agenda 21 and the Rio Principles, December 2011.

92  See eg Responsibilities and Obligations of States sponsoring Persons and Entities with respect to Activities in the Area, Case no 17, ITLOS (Seabed Dispute Chamber), Advisory Opinion of 1 February 2011 (‘Advisory Opinion on the Area’), paras 110–16.

93  Award in the Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, 27 RIAA (2005) 35, paras 58–9; Shrimp-turtle, Appellate body, paras 129–31, 152–3; Indus Waters Kishenganga (partial award), para 452.

94  See eg S.D. Myers Inc. v. Canada, NAFTA Arbitration (UNCITRAL Rules), Partial Award (13 November 2000), para 247.

95  Trail Smelter, RIAA III 1905–1982 (‘Trail Smelter’), 1965. Corfu Channel case, Judgment of 9 April 1949, ICJ Reports 1949, 22 (‘Corfu Channel case’), 22. (although this case does not concern environmental matters, the ICJ has equated the prevention principle applied in it with the modern prevention principle, see Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, 14 (‘Pulp Mills’), para 101).

96  ‘Declaration of the United Nations Conference on the Human Environment’, Stockholm, 16 June 1972, UN Doc A/CONF 48/14/Rev.1, 2ff. Principle 1 stated: ‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.’

97  African Charter on Human and Peoples’ Rights, 27 June 1981, (1982) 21 ILM 58, art 24. This provision was discussed in Social and Economic Rights Action Center (SERAC) and others v. Nigeria, African Commission Application no 155/96 (2001–2002) (‘Ogoni case’), para 52.

98  Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 16 November 1988, OAS Treaty Series no 69, art 11(1). This provision, which is considered not to be directly justiciable, has been used for interpretation purposes. See Kawas-Fernandez v. Honduras, ICtHR Series C no 196, Judgment (merits, reparation and costs) (3 April 2009), para 148.

99  ASEAN Human Rights Declaration, 19 November 2012, art 28(f), available at: <http://www.asean.org>.

100  In the European context, the leading case was Lopez Ostra v. Spain, ECtHR Application no 16798/90, Judgment (9 December 1994), and a good retrospective of the case law appears in Tatar v. Romania, ECtHR Application no 67021/01, Judgment (6 July 2009), paras 85–8 (in French). In the Inter-American context the leading case was Mayagna (Sumo) Awas Tingni Community v. Nicaragua, ICtHR Series C no 79, Judgment (31 August 2001) (‘Awas Tingi case’) and a good retrospective of the case law is provided in Indigenous People Kichwa of Sarayaku v. Ecuador, ICtHR Series C no 245, Judgment (merits and compensation) (27 June 2012), paras 145–7 and 159–68 (‘Sarayaku case’).

101  See eg Kitok v. Sweden, HRC Complaint 197/1985 (27 July 1988); Bernard Ominayak and the Lubicon Lake Band v. Canada, HRC Complaint no 167/1984 (26 March 1990); Ilmari Länsman et al v. Finland, HRC Complaint no 511/1992 (8 November 1995); Jouni E. Länsman et al v. Finland, HRC Complaint no 671/1995 (30 October 1996); Apirana Mahuika et al v. New Zealand, HRC Complaint no 547/93 (27 October 2000); Diergaardt v. Namibie, HRC Complaint no 760/1997 (6 September 2000); Brun v. France, HRC Complaint no 1453/2006 (18 October 2006); Poma Poma v. Pérou, HRC Complaint no 1457/2006 (27 March 2009).

102  See Shelton, D., ‘Substantive Rights’, in Fitzmaurice, M., Ong, D., and Merkouris, P. (eds), Research Handbook on International Environmental Law (Edward Elgar 2010), 265, 267 (most constitutions adopted after 1992 provide for a right to an environment of a certain quality).

103  See eg Convention on Long-Range Transboundary Air Pollution, 13 November 1979, 1302 UNTS 217 (‘LRTAP Convention’), preamble; United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397 (‘UNCLOS’), art 194(2); UNFCCC, preamble, para 8; CBD, art 3; UNCCD, preamble, para 15; Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, (2001) 40 ILM 532 (‘POP Convention’), preamble, para 10.

104  Prevention provides the architectural basis of many instruments, including International Convention for the Prevention of Pollution from Ships, 17 February 1973, as modified by the Protocol of 1978 relating thereto, UNTS 1340 I-22484 (‘MARPOL 73/78’); Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 983 UNTS 243 (‘CITES’); Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 1989 UNTS 310 (‘Espoo Convention’).

105  See Report-principles, 26–28 September 1995, paras 51–69.

106  See IDI—Environment, art 6; IDI—Responsibility, art 3.

107  See ILC Prevention Articles, (2001), GAOR A/56/10.

108  See New Delhi Declaration, art 1(1).

109  See Trail Smelter, 1965.

110  Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, 226, para 29.

111  Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, 7, para 140.

112  Pulp Mills, paras 101 and 185.

113  Advisory Opinion on the Area, paras 115–20.

114  See eg International Convention for the Regulation of Whaling, 2 December 1946, 161 UNTS 361 (‘Whaling Convention’), Preamble, first recital; Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151 (‘WHC’), art 4; UNFCCC, art 3(1).

115  See UN Secretary-General, Intergenerational Solidarity and the Needs of Future Generations. Report of the Secretary-General, 15 August 2013, UN Doc A/68/322 (‘UNSG Report’).

116  Legality of the Threat or Use of Nuclear Weapons, para 36.

117  State of Himachal Pradesh and others v. Ganesh Wood Products and others, 1995 (6) SCC 363, cited in Ramlogan, R., Sustainable Development: Towards a Judicial Interpretation (Martinus Nijhoff 2011) 226.

118  Minors Oposa v. Secretary of the Department of Environment and Natural Resources (DENR) (1994) 33 ILM 173 (30 July 1993) (‘Minors Oposa case’), 185. See however E.H.P. v. Canada, HRC Complaint no. 67/1980 (27 October 1982), para 8(a), where the reference to future generations was seen as a mere ‘expression of concern’.

119  See section I) 2 of this chapter.

120  Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 6 August 1977, 1125 UNTS 3 (‘Protocol I’).

121  UNCLOS, art 194(2).

122  Agreement establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154. See also Gordon, K. and Pohl, J., ‘Environmental Concerns in International Investment Agreements: a survey’ (2011) OECD Working Papers on International Investment no 2011/1.

123  UNFCCC, art 3(4) (displaying a sort of reverse integration of development considerations).

124  CBD, art 6(b).

125  UNCCD, art 4(2)(a).

126  Gabčíkovo-Nagymaros Project, paras 140–1.

127  Pulp Mills, paras 76–7.

128  United States—Import Prohibition of certain Shrimp and Shrimp Products, WT/DS58/AB/R, 1998 (‘Shrimp-Turtle’), paras 129–31, 152–3.

129  Iron-Rhine, paras 58–9, 220–34.

130  Kishenganga Arbitration, para 452.

131  This is referred to by M. Strong, cited in UNEP, Global Environment Outlook 3 (2002), chapter 1, available at: <http://www.unep.org/geo/geo3/english/038.htm> (accessed 1 May 2014).

132  They refer in this regard to the Statement on Poverty and the International Covenant on Economic, Social and Cultural Rights, UN Doc E/2002/22 -E/C.12/2001/17, 10 May 2001; See also for example, UNGA Resolution 55/106 of 4 December 2000 on Human Rights and Extreme Poverty and Commission on Human Rights resolution 2001/31 of 23 April 2001 on the same subject matter.

133  International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (‘ICESCR’).

134  Committee on Economic, Social and Cultural Rights (Committee), General Comment 12: The right to adequate food (Art 11), UN Doc E/C.12/1999/5, 12 May 1999.

135  Committee, General Comment 4: The right to adequate housing (Art. 11 (1) of the Covenant), (Sixth session, 1991), UN Doc E/1992/23, 13 December 1991.

136  Committee, General Comment N° 15 (2002): The right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/2002/11, 20 January 2003. Committee, Statement on the right to sanitation, UN Doc E/C.12/2010/1 18 March 2011.

137  The Optional Protocol was adopted as a UNGA Resolution A/RES/63/117, 10 December 2008, entered into force 5 May 2013.

138  ‘Political Declaration’, paras 3, 7, and 11.

139  The Future We Want, para 2.

140  UNCLOS; see particularly Part IX.

141  Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 1522 UNTS 29 (‘Montreal Protocol’), see particularly art 5.

142  Biosafety Protocol, preamble, para 8.

143  Kyoto Protocol, arts 3 and 10.

144  POP Convention, art 4(7).

145  ‘Programme of Action for the Sustainable Development of Small Island Developing States’, UN Doc A/CONF.167/9, October 1994.

146  ‘Mauritius Strategy for the Further Implementation of the Programme of Action for the Sustainable Development of Small Island Developing States’, UN Doc A/60/401, 3 October 2005.

147  ‘Programme of Action for the Least Developed Countries 2011–2020’, UN Doc A/CONF.219/7, 13 May 2011.

148  Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 UNTS 293; Montreal Protocol, art 5.

149  UNFCCC, arts 3(1) and 4; Kyoto Protocol, arts 3 and 10, and Annex B.

150  CBD, art 20, particularly para 4.

151  UNCCD, arts 3(d) and 6.

152  POP Convention, preamble, para 13.

153  Minamata Convention on Mercury, 10 October 2013, available at: <http://www.mercuryconvention.org> (accessed on 20 April 2014) (‘Minamata Convention’), preamble, para 8 and arts 13–14.

154  ‘Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’, Decision 1/CP.17, 15 March 2012, Doc FCCC/CP/2011/9/Add. 1, 2.

155  India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, Report of the Panel, WTO Doc WT/DS90/R, para 5.155; European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries, Report of the Appellate Body, WTO Doc WT/DS246/AB/R (2004), para 175.

156  Advisory Opinion on the Area, paras 110–16.

157  Advisory Opinion on the Area, paras 151–63.

158  Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change, CJEU Case C-366/10 (21 December 2011). On the impact of CBDR on the extension of the ETS scheme to aviation see Scott, J. and Rajamani, L., ‘EU Climate Change Unilateralism’ (2012) 23 EJIL 469.

159  UNEP, ABC of SCP—Clarifying Concepts on Sustainable Consumption and Production, 2010, available at: <http://www.uneptie.org/scp/marrakech/pdf/ABC%20of%20SCP%20%20Clarifying%20Concepts%20on%20SCP.pdf>.

160  ‘Plan of Implementation of the World Summit on Sustainable Development’, para 14.

161  See the general presentation of the Marrakech process on the website of the UNEP’s Sustainable Production and Consumption Branch: <http://www.unep.fr/scp/marrakech/about.htm#MP> (accessed on 1 May 2014).

162  The 10 YPF was circulated on the initiative of Brazil for consideration under item 10 of the Agenda of the Rio 2012 Summit. See Annex to the letter dated 18 June 2012 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General of the United Nations Conference on Sustainable Development. A 10-year framework of programmes on sustainable consumption and production patterns, UN Doc A/CONF.216/5. The 10 YPF was adopted at Rio. See The Future We Want, para 226. A Secretariat has been set up to administrate the 10 YPF under the aegis of the UNEP. For an overview of the SCP policies, see UNEP, Global Outlook on SCP Policies. Taking action together (2012).

163  Report of the International Conference on Population and Development, UN Doc A/CONF.171/13/Rev.1, Resolution 1, Annex.

164  Framework of actions for the follow-up of the Programme of Action of the International Conference on Population and Development beyond 2014, Report of the Secretary-General, 12 February 2014, UN Doc a/69/62, Summary.

165  Framework of actions for the follow-up of the Programme of Action, paras 32–46 (placing the issues addressed in the report in a human rights perspective and referring to the chapter on ‘Governance’ with respect to accountability mechanisms).

166  The reports are available on the website of the IPCC: <http://www.ipcc.ch> (accessed on 20 April 2014).

167  See <http://www.ipbes.net> (accessed on 20 April 2014).

168  See LRTAP Convention, art 9.

169  Convention on the Conservation of Migratory Species of Wild Animals, 23 June 1979, 1651 UNTS 356 (‘CMS’), art 8. See <http:www.cms.int/meetings/scientific-council> (accessed on 20 April 2014).

170  See <http://www.wmo.int/pages/prog/arep/gaw/ozone/> (accessed on 20 April 2014).

171  See <http://www.unep.org/geo/> (accessed on 20 April 2014).

172  Montreal Protocol, art 10A; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 1673 UNTS 57 (‘Basel Convention’), art 10; CBD, art 16; UNFCCC, art 4; Kyoto Protocol, art 10.

173  Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, 1869 UNTS 299 (‘TRIPs Agreement’).

174  Paris Convention on the Protection of Industrial Property, 18 March 1883 (subsequently amended several times), 828 UNTS 305.

175  European Union and a Member State—Seizure of Generic Drugs in Transit, DS/408 (Complainant: India), DS/409 (Complainant: Brazil).

176  Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447 (‘Aarhus Convention’).

177  Aarhus Convention, art 19(3).

178  Aarhus Convention, arts 17 and 19(1).

179  UNFCCC, art 6.

180  CBD, art 14(a).

181  UNCCD, arts 5(d), 16, and 19.

182  PIC Convention, art 15.

183  POP Convention, art 10.

184  Minamata Convention, art 18.

185  UNEP Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters, adopted by the UNEP Governing Council in decision SS.XI/5, 26 February 2010.

186  The complaints are available at: <http://www.unece.org/env/pp/pubcom.html> (accessed on 20 April 2014).

187  See eg ECtHR, Okyay et al v. Turkey, 36220/97 of 12 July 2005; ECtHR, Taskin et al v. Turkey, 46117/99 of 10 November 2004; and ECtHR, Tătar v. Romania, 67021/01 of 27 January 2009.

188  Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (‘ECHR’).

189  American Convention on Human Rights, 22 November 1969, 1144 UNTS 123 (‘ACHR’).

190  See Sarayaku case, paras 145–7 and 159–68 (summarizing the case law since the Awas Tingni case).

191  African Charter on Human and Peoples’ Rights, 27 June 1981, (1982) 21 ILM 58 (‘African Charter’).

192  See Ogoni case, para 53.

193  CITES, arts III–V.

194  Basel Convention, art 6.

195  PIC Convention, arts 5–6.

196  See eg Tatar v. Romania, paras 85–8; Sarayaku case, paras 145–7; Ogoni case, paras 52–3.

197  See eg Turgut v. Turkey, ECtHR Application no 1411/03, Judgment—Merits (8 July 2008), para 90.

198  See eg Chemtura Corporation (formerly Crompton Corporation) v. Government of Canada, UNCITRAL, Award (2 August 2010), para 266.

199  See eg Shrimp-Turtle case. To understand the relevance of this case (which rejected the US argument that its measure was justified by art XX), one must recall that the reason why the requirements of the chapeau of art XX were not met concerned the attempt by the US to impose its own environmental policies on third countries. A similar argument has been made in connection with the extension of the ETS Directive to aviation. See Scott and Rajamani, ‘EU Climate Change Unilateralism’. According to Scott and Rajamani, such extension does not take sufficiently into account the specific context of developing countries and, therefore, is inconsistent with the principle of CBDR (Principle 7 of the Rio Declaration and art 3 of the UNFCCC).

200  Panel Report, United States—Restrictions on Imports of Tuna, DS21/R-39S/155 (3 September 1991), (‘Tuna-Dolphin I’).

201  See Pavoni, R., ‘Mutual Supportiveness as a Principle of Interpretation and Law-Making: A Watershed for the “WTO-and-Competing-Regimes” Debate?’ (2010) 21 EJIL 649.

202  Agreement establishing the World Trade Organization, 15 April 1994, 1867 UNTS 154, preamble, para 1.

203  WTO Ministerial Declaration on Trade and Environment, adopted in Marrakesh on 15 April 1994, see: <http://www.wto.org/english/tratop_e/envir_e/issu5_e.htm> (accessed on 20 April 2014).

204  Agreement on Sanitary and Phytosanitary Measures, 15 April 1994, 1867 UNTS 493.

205  Agreement on Technical Barriers to Trade, 15 April 1994, 1868 UNTS 120.

206  Agreement on Subsidies and Countervailing Measures, 15 April 1994, 1869 UNTS 14.

207  Report of the United Nations Conference on Environment and Development, A/CONF.151/26/Rev.l (vol l), Resolution 1, Annex 2: Agenda 21 (‘Agenda 21’), para 17.118.

208  Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (1992) A/CONF.151/26 (vol III) (‘Forest Principles’), para 13–14.

209  UNFCCC, art 3(5).

210  Biosafety Protocol, preamble.

211  Nagoya Protocol on access to genetic resources and the fair and equitable sharing of the benefits arising from their utilization to the Convention on Biological Diversity, 29 October 2010, art 4, available at: <http://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf> (accessed on 20 April 2014).

212  Young notes that Principle 12 has only been explicitly referred to in the Shrimp-Turtle disputes: Shrimp-Turtle case, para 168.

213  See Shrimp-Turtle case, especially para 163, 177; Brazil—Measures Affecting Imports of Retreaded Tyres, 3 December 2007, AB-2007-4 (‘Brazil-Tyres’), paras 246, 252; European Communities—Measures Prohibiting the Importation and Marketing of Seal Products, 22 May 2014, AB-2014-1/AB-2014-2—Reports of the Appellate Body (‘EC-Seals’), para 5.316–5.339.

214  Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage, L 143/56 EN Official Journal of the European Union 30.4.2004.

215  Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq. (1980) (‘CERCLA’).

216  Oil Pollution Act of 1990, 33 U.S.C. 2701 note (‘OPA’).

217  Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 21 June 1993, (1993) 32 ILM 1228 (not in force).

218  Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal, 10 December 1999, UN Doc UNEP/CHW.1/WG/1/9/2.

219  Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 21 May 2003, available at: <http://www.unece.org/env/civil-liability/welcome.html> (accessed on 20 April 2014).

220  Draft principles on the allocation of loss in case of transboundary harm from hazardous activities, Text adopted by the International Law Commission at its fifty-eighth session (2006), Yearbook of the International Law Commission, 2006, vol II (2). The first preambular clause of the ILC Principles expressly refer to Principles 13 and 16 of the Rio Declaration.

221  Nagoya-Kuala Lumpur Supplementary Protocol Liability and Redress to the Cartagena Protocol on Biosafety, 15 October 2010, available at: <http://bch.cbd.int/protocol/NKL_text.shtml> (accessed on 20 April 2014).

222  Bamako Convention on the ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 30 January 1991, 30 ILM 773 (‘Bamako Convention’).

223  Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 29 September 1997, available at: <http://www-ns.iaea.org/conventions/waste-jointconvention.asp> (accessed on 20 April 2014).

224  See the ‘International Code of Conduct on the Distribution and Use of Pesticides’ (1985) and the ‘London Guidelines for the Exchange of Information on Chemicals in International Trade’ (1987).

225  Decision III/1, ‘Amendment to the Convention’, 28 November 1995, UNEP/CHW.3/35.

226  Ireland’s Request for Provisional Measures in the MOX Plant case (Ireland v. United Kingdom), ITLOS Case no 10, paras 33–43.

227  Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), Order on Request presented by Nicaragua for the indication of provisional measures, 13 December 2013, para 19.

228  Report of the Economic Commission for Europe on the Bergen Conference (8–16 May 1990), A/CONF.151/PC/10, annex I, para 7.

229  Report-principles.

230  Adopted at the Strasbourg Session (1997).

231  Read in the light of its commentary, para 4.

232  See n 89 in this chapter.

233  See eg Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 18 March 1992, 1936 UNTS 269 (‘Helsinki Convention’), art 2(5)(a).

234  See eg Montreal Protocol, preamble, para 6; UNFCCC, art 3(3).

235  See eg CBD, preamble, para 9.

236  See eg POP Convention, preamble, para 8.

237  Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, (1997) 36 ILM 1.

238  Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, 2354 UNTS 67 (‘OSPAR Convention’)

239  Fish Stocks Agreement, arts 5(c) and 6.

240  Pulp Mills, para 164.

241  European Communities—Measures Concerning Meat and Meat Products (Hormones)—Arbitration under Article 21.3(c) of the Dispute Settlement Understanding, Appellate Body (29 May 1998) DSR 1998:V, WT/DS26/15 and WT/DS26/15,1833 (‘EC– Hormones’), paras 123–5.

242  European Communities—Measures Affecting the Approval and Marketing of Biotech Products, Panel Report (29 September 2006), WT/DS291/R, WT/DS292/R, WT/DS293/R (‘EC—Biotech products’), para 7.88. In taking this view, the panel followed the Appellate Body in EC—Hormones, para 124.

243  Pulp Mills, Separate Opinion of Judge Cançado Trindade.

244  Tatar v. Romania, para 120.

245  Tatar v. Romania, para 135.

246  Tatar v. Romania, paras 151–63.

247  Tatar v. Romania, para 120 (unofficial translation from the French original).

248  See eg Pfizer Animal Health SA v. Council, CJEC n° T-13/99, paras 114–15; Gowan Comércio Internacional e Serviços Lda v. Ministero della Salute, CJEU Case C-77/09, Judgment (22 December 2010), para 75.

249  See eg Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the Reduction of Sulphur Emissions, 14 June 1994, 2030 UNTS 122 (‘Sulphur Protocol II’), art 2(4)-(5); Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Nitrogen Oxides or their Transboundary Fluxes, 31 October 1988, 28 I.L.M. 212, 216 (‘NOx Protocol’), art 2(2); Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the Reduction of Acidification, Eutrophication and Ground-Level Ozone, 30 November 1999, Document of the Economic and Social Council EB.AIR/1999/1 (‘Gothenburg Protocol’), introducing a more sophisticated system, including standards based on best available technology or limit values but also specific measures (see Annex IX).

250  Montreal Protocol, art 2(5); Kyoto Protocol, arts 6, 12, and 17.

251  The current system is based on instruments adopted in 1992: Protocol amending the International Convention on Civil Liability for Oil Pollution Damage, 27 November 1992, available at: <htttp://www.ecolex.org> (TRE-001 177) (‘CLC/92’): Protocol to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 27 November 1992, available at: <http://www.ecolex.org> (TRE-001 176) (‘FUND/92’). This system has been completed by a 2003 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution by oil, 16 May 2003, available at: <http://www.ecolex.org> (TRE-001 401) (‘FUND/2003’).

252  Regarding nuclear accidents, there are two systems. First, there is one based on the Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, 956 UNTS 251 (‘Paris Convention’). The regime established by the Paris Convention has been supplemented by another treaty, the Convention Supplementary to the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy, 31 January 1963, 1041 UNTS 358 (‘Brussels Supplementary Convention’). The ‘Paris/Brussels’ system was amended in 1964, 1982 and 2004. The latter amendment, which is the result of a process of reflection initiated following the Chernobyl accident is a major overhaul of the original, but it is not yet in force. See Montjoie, M., ‘Nuclear Energy’ in Crawford, J., Pellet, A., and Olleson, S. (eds), The Law of International Responsibility (Oxford University Press 2010), 915. Second, there is a system based on the Convention on Civil Liability for Nuclear Damage, 21 May 1963, 1063 UNTS 265 (‘Vienna Convention’). This treaty was amended by a Protocol to amend the Vienna Convention on Civil Liability for Nuclear Damage, 12 September 1997, 2241 UNTS 302, which leaves in place the two systems (initial system and amended system). The 1997 revision also resulted in the adoption of a Convention on Supplementary Compensation for Nuclear Damage, 12 September 1997, IAEA INFCIRC/567 (‘Complementary Vienna Convention’, not yet in force). The two systems have been linked through a Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention, September 27, 1988, 1672 UNTS 293.

253  See Viñuales, J. E., ‘Green Investment after Rio 2012’ (2014) 16 International Community Law Review 153–76.

254  See Viñuales, J. E., Foreign Investment and the Environment in International Law (Cambridge University Press 2012), ch 1.

255  National Environmental Policy Act, 42 U.S.C. §4321 et seq (1969).

256  Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, (85/337/EEC), Official Journal no L 175, 05/07/1985 P. 0040–0048 (‘EIA Directive’).

257  Espoo Convention.

258  Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, (1991) 30 ILM 1455 (‘Madrid Protocol’).

259  UNECE Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, 21 May 2003, available at: <http://www.unece.org/env/eia/sea_protocol.html> (accessed on 20 April 2014).

260  See eg Espoo Convention, art 2(2) and Appendix I.

261  Madrid Protocol, art 8 and Annex I.

262  ‘Guidelines for Incorporating Biodiversity-Related Issues into Environmental Impact Assessment Legislation and/or Processes and in Strategic Environmental Assessment’, Report of the 6th Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc UNEP/CBD/COP/6/7, Annex.

263  ‘Guidelines for Incorporating Biodiversity-Related Issues into Environmental Impact Assessment Legislation and/or Processes and in Strategic Environmental Assessment’, Report of the 6th Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc UNEP/CBD/COP/6/7, Annex; and 1997 Guidelines for EIA in the Arctic, adopted by the Arctic Council in the 1997 Alta Declaration on the Protection of the Arctic Environmental Protection Strategy online <http://arctic-council.org/filearchive/The%20Alta%20Declaration.pdf>.

264  Adopted at the Strasbourg Session (1997).

265  New Delhi Declaration, 4(2)(c).

266  Pulp Mills, para 204.

267  Advisory opinion on the Area, paras 145, 148.

268  In the Pulp Mills case, the Court held that: ‘it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken’, Pulp Mills, para 205.

269  Corfu Channel case, 22–3; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14 (‘Nicaragua case’), para 215; Tokyo Economic Summit Conference Statement on the Soviet Nuclear Reactor Accident at Chernobyl, 5 May 1986, para 2; ILC Prevention Articles, art 17.

270  ILC, Preliminary Report on the Protection of Persons in the Event of Disasters, by Eduardo Valencia-Ospina, Special Rapporteur, 5 May 2008, UN Doc A/CN.4/598, para 35.

271  Convention on Early Notification of a Nuclear Accident, 18 November 1986, INFCIRC/335.

272  Convention on the Transboundary Effects of Industrial accidents, 17 March 1992, 2105 UNTS 457 (‘Convention on Industrial Accidents’).

273  Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations, 18 June 1998, 2296 UNTS 5.

274  ASEAN Agreement on Disaster Management and Emergency Response, 25 July 2005 (‘ASEAN Agreement’).

275  ILC Prevention Articles, art 8; 2006 ILC Principles, Principle 5(a).

276  Protection of persons in the event of disasters, 15 May 2014, UN Doc A/CN.4/L.831, art 13 (duty to seek external assistance, which presupposes notification).

277  Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters, United Nations World Conference on Disaster Reduction, Kobe, Japan, 18–22 January 2005, A/CONF.206/6.

278  Convention on Industrial Accidents, art 12(1).

279  Convention on the Protection and Use of transboundary Watercourses and International Lakes, Helsinki 17th March 1992, <http://www.unece.org/fileadm/DAM/en/water/pdf/watercon.pdf>.

280  Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 18th November 1986, INFCIRC/336.

281  Phillipines Typhoon, Disasters Emergency Committee, <http//www.dec.org.uk/facts-and-figures> (accessed on 20 April 2014).

282  See L.25, Principle 9 (italics added).

283  Corfu Channel case, 22–3; ILC Prevention Articles, commentary and art 8, para 3; Munro and Lammers, Environmental Protection and Sustainable Development, 99 and 104.

284  Farrajota, M. M., ‘Notification and Consultation in the law applicable to international Watercourses’ in Boisson de Chazournes, L. and Salman, S.M.A. (eds), Water Resources and International Law (Martinus Nijhoff Publishers 2005), 281–339.

285  United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700 (‘1997 New York Convention’).

286  1997 New York Convention, art 17(3).

287  In their chapter, L. Boisson de Chazournes and K. Sangbana refer among others to art 24 of the 2002 Water Charter of the Senegal River; art 20 of the 2008 Water Charter of the River Niger Basin; arts 7–13 of the 1975 Statute of the River Uruguay; art 11 of the 1994 Danube River Protection Convention; arts 5 and 26 of the 1995 Agreement on the cooperation for the sustainable development of the Mekong River Basin; art 8 of the 2010 Agreement on the Nile River Basin Cooperative Framework.

288  ILC Prevention Articles, arts 8 and 9.

289  Espoo Convention.

290  Lake Lanoux case (Spain v. France), Award of 16 November 1957, RIAA vol XII, 281ff (‘Lake Lanoux case’), para 21.

291  Pulp Mills, para 144.

292  MOX Plant case, para 89(a).

293  See Fisheries Jurisdiction case (UK v. Iceland), Decision on Jurisdiction, ICJ Reports 1974, 3 (‘Fisheries Jurisdiction’), para 72; Pulp Mills, para 281; MOX Plant case, para 89(b).

294  Certain Activities Carries Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Request for the Indication of Provisional Measures, Order (8 March 2011) (‘Costa Rica v. Nicaragua’), paras 80 and 86(2).

295  CBD, preamble, para 13.

296  UNCCD, prologue, para 20.

297  Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (13 September 2000).

298  ‘Programme of Action’, Report of the International Conference on Population and Development, New York, 1994, ‘Programme of Action’, UN Doc A/CONF.171/13.

299  Report of the Fourth World Conference on Women, New York, 1995, UN Doc A/CONF.177/20.

300  ‘Millennium Declaration’, paras 20 and 25.

301  The Future We Want, paras 236–44.

302  Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 455 (‘CEDAW’).

304  UNFCCC, arts 4(1)(i) and 6.

305  CBD, art 13; Biosafety Protocol, art 23(1).

306  UNCCD, art 19.

307  Aarhus Convention, art 3(3).

308  Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 June 1999, 2331 UNTS 202, art 9(1).

309  POP Convention, 10(1)(c).

310  See UNFCCC note on United Nations Joint Framework Initiative on Children, Youth and Climate Change, <http://unfccc.int/cc_inet/cc_inet/youth_portal/items/6519.php> (accessed on 20 April 2014).

311  See ‘The long road to the establishment of GYBN’, available at: <http://www.gybn.net/HistoryofGYBN.aspx> (accessed on 20 April 2014).

312  Minors Oposa case.

313  See also ICtHR, Case of the ‘Juvenile Reeducation Institute’ v. Paraguay, Preliminary Objections, Merits, Reparations and Costs, Judgment of 2 September 2004, para 172.

314  Marangopoulos Foundation for Human Rights (MFHR) v. Greece, European Committee of Social Rights, Complaint no 30/2005, Decision on the Merits, 6 December 2006.

315  Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, (1989) 28 ILM 1382.

316  ‘United Nations Declaration on the Rights of Indigenous Peoples’, UNGA Resolution 61/295, 13 September 2007, Annex, UN Doc A/RES/61/295 (‘UNDRIP’).

317  CBD, art 8(j); Nagoya Protocol, art 7.

318  The case law of the ECtHR on this point is more restrictive. See Koivurova, T., ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1.

319  Case of the Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment, 28 November 2007, ICtHR Ser. C no 172.

320  See Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, African Commission Application no 276/2003 (‘Endorois case’). For a similar factual configuration see African Commission on Human and Peoples’ Rights v. Kenya, Order on provisional measures, 15 March 2013, African Court, Application no 006/2012.

321  Convention on the Laws and Customs of War on Land (Hague IV), 18 October 1907, Annex, art 47.

322  Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.

323  ICESCR; International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (‘ICCPR’).

324  Resolution on a Human Rights’ Based Approach to Natural Resources Governance, 51st Ordinary Session of the African Commission on Human and Peoples’ Rights, 18 April–2 May 2002.

325  Ogoni case, paras 55–8.

326  De Bataafsche Petroleum v. War Damage Commission, 22 Malayan Law Journal 155 (1956), reproduced in Marco Sassoli and Antoine Bouvier, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, ICRC, 2003, vol II, 1072.

327  Certain Phosphates Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Reports 1992, 240; East Timor case, Dissenting opinion, Judge Weeramantry, ICJ Reports 1995, 197–9; Dissenting opinion, Judge Skubizewski, ICJ Reports 1995, 276; Armed Activities on the Territory of Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ Reports 2005, 168 (‘DRC v. Uganda’).

328  DRC v. Uganda, para 244.

329  Protocol I, 6 August 1977, 1125 UNTS 3.

330  Convention for the Prohibition of Military or other Hostile Use of Environmental Modification Techniques, 10 December 1976, 1108 UNTS 151 (‘ENMOD Convention’).

331  See Henckaerts, J.-M. and Doswald-Beck, L., Customary International Humanitarian Law (Cambridge University Press 2009), rules 43–5.

332  ICRC, Guidelines for military manuals and instructions on the protection of the environment in times of armed conflict, 1993, online: <http://www.icrc.org/eng/resources/documents/misc/57jn38.htm>.

333  Draft articles on the effects of armed conflicts on treaties, UN Doc A/CN.4/L.777, 11 May 2011, arts 6, 7, and Annex.

334  See ILC, ‘Report on the work of its sixty-fifth session’, UN Doc A/68/10, at ch IX.

335  Legality of the Threat or Use of Nuclear Weapons, para 30.

336  Central Front Ethiopia’s Claim 2, Ethiopia/Eritrea Claims Commission, Partial Award, 28 April 2004, para 100.

337  Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 13 June 2000.

338  Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign, para 15.

339  The Marshall Islands submitted three separate applications on 24 April 2014 against, respectively, India, Pakistan, and the UK. See <http://www.icj-cij.org> (accessed on 1 May 2014).

340  See UNGA ‘Report of the High Level Panel on Threats, Challenges and Change’ (2 December 2004) UN Doc A/59/565. See also ‘Security Council holds first-ever debate in impact of climate change on peace, security, hearing over 50 speakers’, UN Press release, <http://www.un.org/News/Press/docs/2007/sc9000.doc.htm> (accessed on 20 April 2014). See Penny, C., ‘Greening the Security Council: Climate Change as an Emerging “Threat to International Peace and Security”’ (2007) 7 International Environmental Agreements: Politics, Law, Economics 35.

341  Wilson, G., An Introduction to International Refugee Law (Brill 2013), 267–89.

342  See ‘Declaration on the Right to Development’, 4 December 1986, UN Doc A/RES/41/128, art 7.

343  A ‘Chamber for Environmental Matters’ was created in 1993 pursuant to art 26(1) of the Statute of the International Court of Justice (Press Release 93/20, Constitution of a Chamber of the Court for the Environmental Matters, 19 July 1993). This Chamber was never put to use and, eventually, in 2006, the Court decided not to reconstitute it. Another example is the ‘Chamber for Marine Environmental Disputes’ established by the ITLOS in 1997 pursuant to art 15(1) of its Statute (Press Release ITLOS/Press 5, 3 March 1997).

344  Permanent Court of Arbitration (PCA), Optional Rules for Arbitration of Disputes relating to the Environment and/or Natural Resources (‘PCA Optional Rules’).

345  See Koskenniemi, M., ‘Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol’ (1992) 3 YbIEL 123.

346  See Treves, T. et al (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (TMC Asser Press 2009); Urbinati, S., Les mécanismes de contrôle et de suivi des conventions internationales de protection de l’environnement (Giuffrè 2009).

347  See eg Boyle, A., ‘Between Process and Substance: Sustainable Development in the Jurisprudence of International Courts and Tribunals’, in Bugge, H. andVoigt. C. (eds), Sustainable Development in International and NationalLaw (Europa Law Publishing 2008), 201–19; French, D., ‘Environmental Dispute Settlement: The First (Hesitant) Signs of Spring?’ (2007) 19 Hague Yearbook of International Law 3; Jennings, R., ‘The Role of the International Court of Justice in the Development of International Environment Protection Law’ (1992) 1 RECIEL 240; Lecucq, O. andMaljean-Dubois, S. (eds), Le rôle du juge dans le développement du droit de l’environnement (Bruylant 2008); Romano, C., The peaceful settlement of international environmental disputes: a pragmatic approach (Kluwer 2000); Stephens, T., International Courts and Environmental Protection (Cambridge University Press 2009); Viñuales, J. E., ‘The Contribution of the International Court of Justice to the Development of International Environmental Law’ (2008) 32 Fordham International Law Journal 232.

348  ‘Report of the World Summit on Sustainable Development’, UN Doc A/CONF.199/20 (2002). See Sand, P. H., ‘Environmental Summitry and International Law’ (2002) 13 YbIEL 21, 27–8; Witte, J. M., Streck, C., and Benner, T. (eds), Progress or Peril? Partnerships and Networks in Global Environmental Governance: The Post-Johannesburg Agenda (Global Public Policy Institute 2003); Beisheim, M., Campe, S., and Schäferhoff, M., ‘Global Governance through Public-Private Partnerships’, in Enderlein H., Wälti, S., and Zürn, M. (eds), Handbook on Multi-Level Governance (Edward Elgar 2010), 370–82.

349  ‘Renewing the United Nations: A Programme for Reform’, UN Doc A/51/950 (14 July 1997), para 85.

350  Estrada Oyuela, E. (ed), Expert Consultations on International Environmental Governance: Chairman’s Summary, UNEP IEG Working Document (29 May 2001), 1.

351  Sand, P. H., The Rise of Public Trusteeship in International Environmental Law, GlobalTrust Working Paper Series 03/2013 (Tel Aviv University: Buchmann Faculty of Law 2013).

352  International Treaty on Plant Genetic Resources for Food and Agriculture, 3 November 2001, 2400 UNTS 379.

353  ‘Bering Sea Fur Seals Fisheries Arbitration’ (Great Britain/United States, 15 August 1893); Moore, J. B. (ed), History and Digest of the International Arbitrations to which the United States has been a Party (US Government Printing Office 1898), vol 1, 755, at 814.

354  Robinson Township, et al v. Commonwealth (19 December 2013) 63 MAP 2012.

355  See the discussion in Shelton, D., ‘What happened in Rio to human rights?’ (1992) 3 YbIEL 75.

356  On the difficult negotiation of the finance chapter of Agenda 21 see Ricupero, R., ‘Chronicle of a Negotiation: The Financial Chapter of Agenda 21 at the Earth Summit’ (1993) 4 Colorado Journal of International Environmental Law and Policy 81.

357  On this question see Fairman, D. and Ross, M., ‘International Aid for the Environment: Lessons from Economic Development Assistance’, CSIA Discussion Paper 94-03, Kennedy School of Government, Harvard University, April 1994.

358  A ‘mechanism’ has been recently set up under the aegis of the UNFCCC to address this issue. See ‘Warsaw international mechanism for loss and damage associated with climate change’ (Decision -/CP.19).

359  On this question see Dupuy, P.-M. and Viñuales, J. E. (eds), Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards (Cambridge University Press 2013).

362  See Gordon, K. and Pohl, J., ‘Environmental Concerns in International Investment Agreements: a survey’ (2011) OECD Working Papers on International Investment no 2011/1 (‘OECD Report’).

363  UNCTAD, World Investment Report. Towards a New Generation of Investment Policies (2012), chapter IV (Investment Policy Framework for Sustainable Development).

364  OECD, Harnessing Freedom of Investment for Green Growth, Freedom of Investment Roundtable, 14 April 2011.

365  See Mann, H. et al, IISD Model International Agreement on Investment for Sustainable Development. A Negotiator’s Handbook (IISD, 2006).

366  Several claims were brought under trade and investment agreements as a result of the same feed-in-tariff scheme adopted by Ontario, Canada. See Canada—Certain Measures Affecting the Renewable Energy Generation Sector, Panel Report (19 December 2012), WT/DS412/R and WT/DS426/R, Appellate Body Report (6 May 2013), WT/DS412/AB/R and Canada—Measures Relating to the Feed in Tariff Program, WT/DS426/AB/R (‘Canada—Renewables’); Mesa Power Group LL.C. v. Government of Canada, NAFTA (UNCITRAL) Arbitration, Notice of Arbitration (4 October 2011); Windstream Energy LL.C. v. Government of Canada, NAFTA (UNCITRAL), Notice of Arbitration (28 January 2013).

367  Examples of differences between trade and investment include the understanding of ‘likeness’ in a non-discrimination context (see eg Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case no ARB/05/8, Award (11 September 2007), which uses a definition of likeness that would encompass production processes and methods) or the operation of countermeasures (see eg Corn Products International Inc. v. United Mexican States, ICSID Case no ARB(AF)/04/1, Decision on Responsibility (15 January 2008), paras 161, 176). See generally DiMascio, N. and Pauwelyn, J., ‘Nondiscrimination in Trade and Investment Treaties: Worlds Apart of Two Sides of the Same Coin?’ (2008) 102 AJIL 48; Kurtz, J., ‘The use and abuse of WTO law in investor–state arbitration: Competition and its discontents’ (2009) 20 EJIL 749.

368  UNGA Resolution 2625 (XXV), ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’, 24 October 1970, UN Doc A/RES/25/2625.

369  See Abi-Saab, G., ‘La reformulation des principes de la charte et la transformation des structures juridiques de la communauté internationale’ in Le droit international au service de la paix, de la justice et du développement: mélanges Michel Virally (Pedone 1991), 1–8; Dupuy, P.-M., ‘L’unité de l’ordre juridique international: cours général de droit international public (2000)’, in RCADI, vol 297 (2002), 9–489 (discussing art 2 of the United Nations Charter as the foundation of the substantive unity of international law).