Common but Differentiated Responsibilities ("CDR")

"Intra-" and "inter-" generational equity is the responsibility of all states, although both concepts make distinctions between developing and industrialized countries about their duties. Over thirty years ago, the United Nations General Assembly passed a resolution which declared that

"The protection, preservation and enhancement of the environment for present and future generations is the responsibility of all States. All States shall endeavor to establish their own environmental and developmental policies in conformity with such responsibility. The environmental policies of all States should enhance and not adversely affect the present and future development of developing countries."

This definition of "state responsibility" anticipated what has come to be called in more recent international legal instruments, such as the Climate Change Convention, as "common but differentiated responsibilities." The concept is described more precisely in Principle 23 of the Stockholm Declaration which states that

"[I]t will be essential in all cases to consider the systems of values prevailing in each country, and the extent of applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries."

Principle 23 sanctions differential treatment for developing countries in relation to industrialized states. Likewise, UNGA 3281 and the other UN declarations calling for a New International Economic Order ("NIEO") focus attention on the gap in living standards between developing and industrialized countries and argue that this must be bridged. Differential treatment favoring developing countries, in forms such as preferential trade, technical and financial resource transfers, and less stringent environmental standards are widely seen as the best the means for attaining this objective.

Attaining intergenerational equity is also closely linked to the concept of common but differentiated responsibilities. CDR acknowledges that there are global environmental problems that need to be addressed in partnership by both the North and the South. But it predicates responsibility for environmental protection on both past consumption of natural resources and present capacity to shoulder the burden of maintaining and improving environmental quality. Najam writes:

"[T]he costs to be borne by different parties, the ability to bear these costs, and the responsibility for causing the problem in the first place, are differentiated...Serious differences exist between North and South, on all three."

Along with the Convention on Biological Diversity (CBD), the Climate Change Convention (CCC) emphasizes economic growth and poverty eradication as "first and overriding priorities" of developing countries. To accomplish its objective of "stabilizing dangerous anthropogenic interference with the climate system," the CCC emphasizes above all adherence to "equity" on the part of the Parties. These concepts are repeated as principles throughout the CCC. Article 4, which codifies "common but differentiated responsibilities" "recogniz[es]...the need for equitable and appropriate contributions..." by each Party for mitigating climate change. Like Article 20 of the CBD, Article 4 of the CCC obliges developed countries to "provide new and additional financial resources" to assist developing countries to meet their obligations under the CCC.

For developing countries, realization of an international participatory partnership mandates acceptance by industrialized countries of a legal norm of "common but differentiated responsibilities. One model norm is Principle 7 of the Rio Declaration. It provides that

"...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 technological resources they command."

From the standpoint of developing countries, the broad goal of "common but differentiated responsibilities" is to transform the normative character of financial and technical resource transfers between industrialized and developing countries from the realm of "aid" to the category of international legal obligation. To counter any suggestion that common but differentiated responsibilities might create a legal obligation to developing countries, the United States issued the following "written statement" at the UNCED:

"The United States understands and accepts that Principle 7, highlights the special leadership role of the developed countries, based on our industrial development, our experience with environmental protection policies and actions, and our wealth and technical expertise capabilities. The United States does not accept any interpretation of principle 7 that would imply a recognition or acceptance by the United States of any international obligations or liabilities, or any diminution in the responsibilities of developing countries."

The United States Government's position on the normative status of common but differentiated responsibilities reflects the views of most other industrialized states. Likewise, it suggests that although CDR is incorporated in the provisions of at least one enforceable treaty, namely the CCC,as well as in the Rio Declaration,some industrialized states do not consider it to be a general norm of international law imposing any duties between states.

More recently the Leipzig Declaration on Conservation and Sustainable Utilization of Plant Genetic Resources stated that the participating states confirmed their "common and individual responsibilities" in respect of plant genetic resources, while also recognizing that states have sovereign rights over their plant genetic resources. This demonstrates that the concept of differentiated responsibilities continues to be affirmed as an international normative standard.

Equitable Sharing of Benefits

Between State Actors

In existing international instruments there are at least two commonly-used meanings for the concept of "equitable sharing of benefits." The first is equitable sharing among countries regarding use of natural resources. The second calls for receipt of a fair economic return to all of those state and non-state Parties from which the resource was obtained. Equitable sharing is highlighted in the Charter of the Economic Rights and Duties of States, UNGA Res. 3281 of 1974. Article 10 states:

"All States are juridically equal and , as equal members of the international community, have the right to participate fully and effectively in the international decision-making process in the solution of world economic, financial and monetary problems, inter alia, through the appropriate international organizations in accordance with their existing and evolving rules, and to share equitably in the benefits resulting therefrom."

As an outgrowth of the NIEO, equitable sharing in the inter-state context has arisen pursuant to developing country demands for sharing in benefits that industrialized countries derive from the exploitation of the "global commons," which includes Outer Space, Antarctica, and areas where deep sea-bed minerals can be found beyond the Exclusive Economic Zone ("EEZ") of coastal nations. Equitable sharing of benefits derived from the use of these resources has been linked to classifying these resources as the "common heritage of mankind."

The earliest references to the concept of "common heritage of mankind" are in the writings of Grotius who argued that "[w]hat cannot be seized or enclosed - such as the open sea - cannot be reduced to property of individual States. Thus, these zones remain ‘common to all mankind'..." The U.S. Government's arguments in the 1892 Fur Seal Arbitrations, namely that its management of the Bering Fur Seal herd was for the "general benefit of mankind" and the "common use of mankind"anticipated the notion of "common heritage" popularized almost 100 years later. In more recent usage, the "common heritage of mankind" is used to describe the resources of outer space bodies in the Moon Treatyand the deep sea bed of the oceans in the United Nations Law of the Sea Convention 1982.

Most developing countries do not have the technical or financial matériel to exploit natural resources in these global commons spaces. For at least the past two decades, the South has argued on moral and legal grounds in the United Nations that these resources should not be claimed and carved up for the exclusive use of a small club of wealthy powerful states, to the detriment of the development objectives of the rest of the world. Rather, their argument is that these resources and any benefits derived from them should be considered as global patrimony and shared equitably with all nations.

The original articles of the UNCLOS 1982 dealing with the deep sea-bed regime are products of the NIEO. They also reflect the initial success of the NIEO agenda in transforming North-South economic relations by promoting the "common heritage of mankind" as a legal principle for governing the commercial exploitation of the global commons and for equitably sharing of the benefits. These articles remain the most far-reaching attempt by developing countries to create binding treaty obligations that mandate the restructuring of international economic relations.

The specific provisions are set out in Article 5 of Annex III of the UNCLOS 1982.They mandate technology transfers to a developing country or the "Enterprise" (the international seabed authority created under the Convention to monitor exploitation of the deep sea-bed) on "fair and equitable commercial terms and conditions" whenever the developing country or Enterprise "finds that it is unable to obtain the same or equally efficient and useful technology on the open market on fair and reasonable market terms and conditions..."

The free market price of a technology might not necessarily be construed to be "fair and reasonable market terms and conditions," especially when a poor country seeks expensive state of the art technology. These Article 5 provisions would create an international treaty obligation on the part of industrialized countries to developing countries to make technology transfer on preferential terms. The original text of UNCLOS 1982 does not articulate the means, however, for ensuring "equitable sharing" among States. It only provides that the "[Enterprise]...shall provide for the equitable sharing of...benefits derived from the [deep sea-bed] Area."

The United States and other industrialized states objected to this language and refused to sign the Treaty until it was modified in a supplemental agreement which removed the mandatory technology transfer languageand restructured the regime along free market lines.Although in theory this language may have merit, in practice the "common heritage" manifest in the deep sea-bed resources will probably be commonly accessible only to an elite of wealthy, technologically advanced states.

Under the Moon Treaty,"common heritage" was adopted as a legal norm, at least for activities regarding the subject matter of that convention.The existing international instruments in general have employed the term "common heritage" only to non-living resourceswith two apparent exceptions. These are the FAO International Undertaking on Plant Genetic Resources of 1983("FAO Undertaking") and the African Charter on Human and Peoples' Rights ("African Human and Peoples' Rights Charter").Article 22 of the African Human and Peoples' Rights Charter proclaims that "All people shall have the right to their economic, social and cultural development...and in the equal enjoyment of the common heritage of mankind"but does not provide further details.

The FAO Undertaking characterizes plant genetic resources as a "heritage of mankind to be preserved and to be freely available for use, for the benefit of present and future generations." The word "common" is not included along with "heritage of mankind." This suggests that although plant genetic resources are a heritage of mankind, they are not part of the global commons, and thus are not available to everyone as common property. The rest of the text quoted above, however, suggests that plant genetic resources should at least be available for everyone, an implication that has proven to be controversial among industrialized and developing countries.A subsequent annex to the Undertaking even includes the words "common heritage"to clarify interpretation of the original document. Unlike the other uses of common heritage of mankind, the subject matter of the FAO Undertaking, namely plant genetic resources, is almost exclusively located within specific national jurisdictions, not the global commons. Subsequent resolutions to the FAO Undertaking have tried to clarify with mixed success how resources which are located within individual state jurisdictions can be made "freely available," without compromising the rights of plant breeders, farmers and others who invested time, labor, and money in developing floral genetic material.

The common heritage of mankind concept has not been applied to high seas fisheries stocks. Despite efforts by certain developing countries, such as Malaysia,it also has not been applied in conventions covering living and non-renewable resources in Antarctica.The Protocol on Environmental Protection to the Antarctic Treaty of 1991refers to protection of the Antarctic environment and dependent ecosystems as "in the interest of mankind as a whole,"but this suggests a duty rather than a right as indicated by the term "heritage".

The Convention on Biological Diversity ("CBD") appears to have been partially inspired by the "common heritage of mankind" concept. It incorporates language on the "equitable sharing of the benefits" to living resources, but does not characterize biodiversity as the "common heritage of mankind." Instead, biological diversity is identified in the preamble to the CBD as a "common concern of humankind." This implies a duty of states to conserve biodiversity, and can be interpreted as legally obliging industrialized countries to provide financial and technical assistance to developing countries to help the latter to conserve biodiversity within their national territories.

The CBD also borrows some terminology and concepts from the FAO Undertaking, but has specified the terms under which the resources are "available". The CBD clearly states that access to the resources "...shall be subject to prior informed consent..."and that sharing of this material "...shall be upon mutually agreed terms..."This has significant implications for participation in the utilization of the benefits of resources of biological diversity. All states may have the responsibility to conserve biodiversity as a global phenomenon, namely as a "common concern," but not necessarily the right to utilize biodiversity, particularly when it is located in the jurisdiction of another state.

Equitable Sharing with Non-state Actors

The other meaning of "equitable sharing of benefits" relates to ensuring a fair economic return to those individuals or groups from whom genetic or other biological, intellectual, cultural or economic resources were obtained. Recent international instruments affirm in varying degrees that the participation of non-state actors is desirable and essential to fulfil the objectives of conservation and sustainable development. This aspect of "equitable sharing" appears to have made its international debut at the UNCED. In Agenda 21, Chapter 15 on the "Conservation of Biological Diversity" provides that

"Governments...should...Recognize and foster the traditional methods and the knowledge of indigenous people and their communities...and ensure the opportunity for the participation of those groups In the economic and commercial benefits derived from the use of such traditional methods and knowledge..."

This definition of equitable sharing also appears in a wide variety of post-UNCED resolutions, declarations, platforms for action, and other norm-creating materials. These materials include the Draft Declaration and Draft Platform for Action for the Fourth World Conference on Women, which calls upon governments to

"Encourage through national legislation and subject to it, indigenous women's traditional knowledge, innovations and practices and skills, including those concerning traditional medicines, biodiversity and indigenous technologies ...and encourage the equitable sharing of the benefits arising from the utilization of such knowledge..."

The long-term ramifications of equitable sharing between state and non-state actors are still evolving under the international and national legal instruments. A radical departure, however, from much of current intellectual property law which does not contain adequate protections for the types of knowledge regarding resource utilization maintained by many traditional long-term occupant communities is likely. Ensuring that local communities receive adequate compensation from outsiders (national or foreign) for utilization of knowledge and genetic resources which they have managed or husbanded could provide positive stimuli for them to conserve these resources. The 1994 Desertification Convention expressly requires equitable sharing by local communities and thus is the most progressive enforceable international agreement to date encapsulating this concept. The CBD and most other instruments, however, still fail to adequately acknowledge and protect the interests of local people and communities which, in many cases, are savy stewards of genetic and other natural resources.

Stockholm Principle 21

Principle 21 of the Stockholm Declaration provides that

"States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources, pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction."

Formal statements made by several states in international fora including the International Court of Justice as well as general state practice and the views of legal commentators affirm that the content expressed in Stockholm Principle 21 constitutes customary international law. There is also sufficient evidence demonstrating state practice and opinio juris regarding Principle 21, which is supported by individual and collective government statements on the matter. Since 1972, Stockholm Principle 21 has been included in the following international treaties: 1) the 1985 Vienna Convention for the Protection of the Ozone Layer, 2) the 1979 Convention on Long-Range Transboundary Air Pollution, 3) the 1972 London Convention on the Prevention of Marine Pollution by Dumping Wastes and other Matter, 4) The 1982 UNCLOS 1982, Article 193, 5) the CBD and 6) the CCC.

The language of Stockholm Principle 21 contained in the Rio Declaration and the CCC is modified to read as: " 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 no cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." (emphasis supplied).

There has been considerable debate about the legal effect and interpretation of Principle 21 in the light of the inclusion of the words "and developmental" between "environmental" and "policies" in the language of Stockholm Principle 21these two documents. This modification has led one commentator who was involved with the drafting of the Stockholm Declaration in 1972 to opine that:

"...this may be situation without precedent in international law: the wording of a text seen as customary law is altered by a subsequent document [the Rio Declaration] that may not attain a similar status."

The inclusion of the words "and developmental" does not significantly alter the original meaning or intent of the language of Principle 21. It merely affirms the existing understanding that sustainable development requires complementarity of environmental and developmental objectives. The incorporation of the Principle in the above international conventions, although not probative is significant evidence suggesting acceptance of its customary law status.

In July 1996, the ICJ affirmed the customary law status of the content expressed in Stockholm Principle 21 regarding trans-boundary environmental responsibility:

"The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment."

Principle 21 is a compromise text. It brings together two ideas of different historical and geo- political origins, and reflects divergent perspectives held respectively by the "developing" and "industrialized" states. The first idea is expressed in the beginning part of the Principle:

"States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies..."

The second is contained in the latter half of Principle 21.

"States have, in accordance with the Charter of the United Nations and the principles of international law ...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."

Principle 21: Part One

The first part of Principle 21 enshrines the concept of "permanent sovereignty over natural resources" of which Schachter wrote in the 1970s:

"In recent years no normative principle has been more vigorously asserted by the less-developed countries than that of ‘permanent sovereignty over natural resources', a concept generally defined by its proponents as the ‘inalienable right of each state to the full exercise of authority over its natural wealth and the correlative right to dispose of its resources fully and freely'. For many developing countries this right is regarded as an essential condition of their national independence and of their ability to decide on basic political and economic arrangements."

Sovereignty over natural resources was on the General Assembly's agenda from the early years of the United Nations. It has been a major preoccupation of the developing countries, which sought international legal endorsement for their efforts to consolidate national economic as well as political control, particularly against perceived domination by foreign-owned transnational enterprises. One of the first normative instruments concerned with this issue is UNGA Res. 626 of December 21, 1952 on the "right to exploit freely natural wealth and resources." It states, inter alia, that

"...the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty and is in accordance with the Purposes and Principles of the Charter of the United Nations."

UNGA Res. 626 provided the normative foundation for UNGA Res. 1803 of 14 December 1962. The text of UNGA Res. 1803 with which the great majority of states now concur, expresses existing customary international law regarding national control over natural resources. It is the direct antecedent to the first part of Stockholm Principle 21. It provides, inter alia, that

"The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned."

This principle is one of the foundation stones of the developing countries' agenda for a "New International Economic Order." It was crafted to redress what the South perceived as an unfair international economic and legal system created by former colonial powers. It is derived from a series of UNGA resolutions introduced by developing countries, beginning in the 1950s with UNGA 626, that sought recognition in international law of national efforts to control, through nationalizations, expropriations or otherwise, foreign access to and use of natural resources. Supportive international instruments include UNGA Resolutions 1803, 3201, and 3281: the so-called "Charter of Economic Rights and Duties of States," as well as several well-known international petroleum arbitration decisions.

The legislative history of UNGA Res. 1803 indicates that the resolution was viewed by most states involved in its drafting as being an expression in 1962 of existing international law. The analysis provided by the sole arbitrator, Dupuy ,in Texaco v. Libyan Arab Republic is an authoritative statement acknowledging the customary international law status of the language of UNGA 1803. In light of the Texaco v. Libyan Arab Republic arbitration decision, UNGA Res. 1803 has been generally considered to reflect customary international law.

This first part of Stockholm Principle 21 will have special relevance to controversies brought before the ECO concerning transboundary environmental damage. It recognizes a state's right to protect and manage resources for its own national development. The notion of "permanent sovereignty" embodied in this language can promote conservation and sustainable development by providing a state with international recognition of the right to protect its resources from outside interests that might exploit them in a destructive and unsustainable manner. But the language might also support international legal sanctions against a state that makes decisions regarding the management and exploitation of resources located within its jurisdiction without regard to the impacts of such decisions on the environment, including health and safety conditions, of other states. Additionally, it suggests that states are free to pursue different environmental policies and accordingly different environmental standards. The environment, however, is a supra-national reality; it does not halt at each country's borders and therefore the consequences of one state's acts regarding use of its environmental resources are often felt in neighboring jurisdictions, and even globally. The long-range transboundary repercussions of the Chernobyl accident in 1986 testify to this.

Dogmatic application of the above language could also fuel conflicts between states over rights to use and consume valuable commercial resources, such as migratory fish, birds and mammals which move between jurisdictions. Degradation of ecosystem diversity, such as obliteration of rainforests, mangrove belts and other habitats in one country, could have serious negative consequences in terms of food production, climate quality and species and genetic diversity in neighboring states. Such serious environmental damage would contravene the "right to environment" previously discussed in this paper. It thus would not only constitute harm to environmental resources in other states, but also be a potential human rights violation. Clearly, therefore, the first part of Principle 21 is inadequate by itself for facilitating sustainable development.

Continued

For more information, contact: Owen J. Lynch (olynch@ciel.org).