The Principles of International Law Related to Sustainable Development
- 1The duty to ensure sustainable use of natural resources
- 2The principles of equity and the eradication of poverty
- 3The principle of common but differentiated responsibilities
- 4The principle of the precautionary approach to human health, natural resources and ecosystems
- 5The principle of public participation and access to information and justice (“Openness”)
- 6The principle of good governance
- 7The principles of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives
It is a well-established principle that, in accordance with international law, all States have the sovereign right to manage their own natural resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause significant damage to the environment of other States or of areas beyond the limits of national jurisdiction. States are under a duty to manage natural resources, including natural resources solely within their own territory or jurisdiction, in a rational, sustainable and safe way so as to contribute to the development of their peoples, with particular regard for the rights of indigenous peoples, and to the conservation and sustainable use of natural resources and the protection of the environment, including ecosystems. States must take into account the needs of future generations in determining the rate of use of natural resources. All relevant actors (including States, industrial concerns and other components of civil society) are under a duty to avoid wasteful use of natural resources and promote waste minimization policies.
The protection, preservation and enhancement of the natural environment, particularly the proper management of climate system, biological diversity and fauna and flora of the Earth, are the common concern of humankind. The resources of outer space and celestial bodies and of the sea-bed, ocean floor and subsoil thereof beyond the limits of national jurisdiction are the common heritage of humankind.
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The 1992 Rio Declaration, in Principle 2, affirms the responsibility not to cause damage to the environment of other States or areas beyond the limits of national jurisdiction, and declares that the States have “the sovereign right to exploit their own resources pursuant to their own environmental and development policies.”
Reviews of current scholarly literature and the terms of many international treaties raise several interesting points with regards to this principle. States have sovereign rights over their natural resources. However, these rights are not absolute. Their sovereignty is restricted by a second objective well recognised in international environmental law, namely, that States must not cause irreparable damage to the territories of other states. There are often practical challenges involved in demonstrating the links of ‘causality’ between an action, and irreparable damage to the global environment, or the environment of another state. This negative obligation (‘not to cause damage’), when applied to the management of shared natural resources, has evolved into a positive obligation, namely, ‘to ensure that natural resources are used in a sustainable manner.’
The importance of “protecting and managing the natural resource base of economic and social development” was given very high priority in the 2002 World Summit on Sustainable Development, as the focus of Chapter IV of the Johannesburg Plan of Implementation.5 As one example of how this principle is reflected in an international treaty on sustainable development, the Preamble to the 1992 UN Framework Convention on Climate Change reaffirms “the principle of sovereignty of States in international cooperation to address climate change,” and applies this concept in Article 3(4), which states “4. The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.”
Prof. Nicholas Schrijver has commented that the rights of states in international law under the principle of permanent sovereignty over natural resources, bound as they are by the other conditions, imply the following duties: (i) to ensure that the whole people (including indigenous peoples and future generations), benefit from the exploitation of resources and the resulting national development; (ii) to have due care for the environment, which incorporates the customary obligation to prevent harm to areas beyond national jurisdiction, as well as the nascent responsibility to manage natural resources to ensure sustainable production and consumption.6 The responsibility of States not to cause environmental damage in areas outside their jurisdiction is related to the obligation of all States to protect within their territory the rights of other States, in particular their right to integrity and inviolability in peace and war.7 Indeed, it is possible that such obligations flow from “the obligation of every state not to allow its territory to be used for acts contrary to the rights of other States.”8 Furthermore, in the Lac Lanoux arbitration, involving the proposed diversion of an international river by an upstream state, the Arbitral Tribunal reaffirmed that a state has an obligation, when exercising its rights, to consider the interests and respect the rights of another state. This obligation was subsequently relied upon, and elaborated, by the Arbitral Tribunal in the Trail Smelter Case, which stated that “[u]nder the principles of international law [...] no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another or of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”9 This is often considered a rule of customary international law, as was recently noted by Judge Rosalyn Higgins in the Iron Rhine Arbitral Award.
Application of the obligations implied by this principle is not unproblematic. It depends on certain conditions being met, something that will not always be possible. For instance, as a principle of international law, it is likely that the natural resources to which the principle refers must not be purely domestic resources. The harm must have some international, or at least transboundary implications. Another condition with relation to this principle is the need to be able to identify what is ‘sustainable use’, and this will differ in relation to each natural resource, and the ‘use’ that is proposed. Other questions also flow from the specifics of application, the nature of the particular international natural resource and the particular intended use. What are the limits? When is a manner of use clearly unsustainable? When would another state be permitted to object? And finally, of course, should states make a commitment to ensure ‘sustainable use’, how to ensure that this is being done, when science is often unable to make accurate predictions? However, the challenges of application do not negate the value of the principle itself, which helps to identify the obligation, and encourage states to seek appropriate instruments and practices to resolve them. One way that this is attempted is through the adoption of a ‘sustainable management approach’, whereby the States or managers set standards governing the rate of use or exploitation of specific natural resources. For example, long-term natural resource planning and management systems, modelling to estimate or predict ‘sustained yield’ or thresholds for resource collapse, and joint international monitoring systems might all be put in place to help meet the obligation posed by this principle.