UNDP and UNEP

Its legal significance. The Programme is not a standard-setting body. Its importance to a law course is that it is the operational arm of the article 55 purposes, and the institutional expression of the proposition in article 55 that conditions of stability and well-being are necessary for peaceful and friendly relations among nations.

The United Nations Environment Programme

Established by the General Assembly in 1972, by resolution 2997 (XXVII), following the United Nations Conference on the Human Environment held at Stockholm from 5 to 16 June 1972, the first world conference on the environment. Its headquarters is at Nairobi, and it was the first principal United Nations body headquartered in a developing country.

What it does.

Keeps the environment under review, monitoring and assessing the state of the global environment and providing early warning.

Develops international environmental law. This is its legal function and the reason it appears in this syllabus. It convenes negotiations, drafts instruments and then provides the secretariat for the conventions that result. The pattern is consistent across the great environmental treaties: the Programme identifies the problem, assembles the science, convenes the States, and administers the regime that follows.

Provides secretariats. Several major multilateral environmental agreements are administered by secretariats provided by or associated with the Programme, including those on the ozone layer, on hazardous wastes, on the trade in endangered species, and on biological diversity.

Coordinates the environment within the system, which is a coordinating role among specialized agencies that do not answer to it, and therefore carries the same weakness as the coordination in Charter article 58.

The Stockholm Declaration, 16 June 1972

The Declaration of the United Nations Conference on the Human Environment. It is a declaration, not a treaty, so it binds nobody as such; its significance is that parts of it state or generate custom, exactly as [Resolutions of the General Assembly] describes.

It espouses broad environmental policy goals and objectives rather than detailed normative positions, which is the accurate characterisation and the one to give in an answer.

Principle 21 is the provision that mattered. In its first part it recognises a State's sovereign right to exploit its own natural resources pursuant to its own environmental policies; in its second part it establishes the responsibility of a State to ensure that activities within its jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

The two halves are a bargain, and the second half is the legal advance. It converts the general principle in the Corfu Channel case, that a State must not knowingly allow its territory to be used for acts contrary to the rights of other States, into a rule about environmental damage, and it extends it to areas beyond national jurisdiction, which is nobody's territory and therefore nobody's to complain of on a purely bilateral view.

The Rio Declaration, 14 June 1992

Adopted at the United Nations Conference on Environment and Development at Rio de Janeiro from 3 to 14 June 1992, twenty years after Stockholm. The Conference was expected to produce an Earth Charter, a solemn declaration of legal rights and obligations on the model of the World Charter for Nature adopted by the General Assembly in 1982. The compromise text that emerged was less than that, and it has nevertheless proved a major landmark.

Principle 2 repeats the second part of Stockholm Principle 21 in identical language, with one change in the first part: the sovereign right to exploit natural resources is now pursuant to the State's own environmental and developmental policies, where Stockholm said environmental alone. The addition of development was the price of the developing States' agreement, and it is the whole argument of the Conference in a single word.

Principle 7, common but differentiated responsibilities. Its second sentence provides: In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The principle is accepted as a cornerstone of the sustainable development paradigm and its exact implications have been contested ever since. Taken at face value the formula ties responsibility to contribution to degradation; it has also been treated as a function of capability, reflecting a State's level of development. Which of the two readings governs is the central question in the law of climate change, and an answer should state both.

Principle 15, the precautionary approach. It provides that the precautionary approach shall be widely applied by States according to their capabilities, and that where there are threats of serious or irreversible damage, a lack of full scientific certainty shall not excuse States from taking cost-effective measures to prevent environmental degradation.

Three things must be said accurately about Principle 15. A European initiative at Rio to include precautionary action as a principle failed to gain support, which is why the text says approach. There is no single authoritative definition of its content or scope, and some States have questioned its status as a principle of international law and still more as a rule of custom, a position taken before a World Trade Organization panel in the dispute on the approval and marketing of biotech products. And in 2011 the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea took note of a trend towards making this approach part of customary international law, which is the most that can safely be said.

The status of the prevention obligation

The obligation in the second part of Stockholm Principle 21 and Rio Principle 2 is no longer merely declaratory. Some States questioned its customary character at Stockholm. Today there is no doubt that the obligation is part of general international law: the International Court of Justice expressly endorsed it as a rule of customary international law in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, and again in the case concerning Pulp Mills on the River Uruguay, and the Pulp Mills decision confirms that the State's obligation of prevention is one of due diligence.

Due diligence is the point to carry away. The obligation is not a guarantee that no harm will occur. It is an obligation of conduct: to deploy the means at the State's disposal, to regulate and to supervise, and it connects to [State Responsibility], since a breach is a failure of the required conduct and not the occurrence of the damage.

Note this too: a Declaration adopted at a conference in 1972, binding nobody, produced a rule the Court now applies as custom. That is the process in [Custom] and [Resolutions of the General Assembly] operating over forty years, and it is the best worked example of it in the syllabus.

India after Stockholm

The Stockholm Conference has a direct constitutional consequence in India, and MU has asked for it, so it belongs here rather than in a general chapter.

The Constitution (Forty-second Amendment) Act 1976 inserted two provisions after Stockholm, and they should be quoted rather than described.

Article 48A, in the Directive Principles: Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Article 51A(g), in the Fundamental Duties: it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Note where each sits and what follows. Article 48A is a Directive Principle, so by article 37 it is not enforceable by any court and is nevertheless fundamental in the governance of the country and a duty of the State to apply in making laws. Article 51A(g) is a Fundamental Duty, addressed to the citizen and likewise not directly enforceable. Neither creates a right by itself, and Indian courts have read both together with article 21 to hold that the right to life includes the right to a wholesome environment, which is the technique described in [International Law in Indian Courts]: an international commitment enters Indian law through the construction of provisions already there.

Article 51(c) is the older provision behind all of this: the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Stockholm produced the two new articles; article 51(c) is why they were understood as giving effect to an international undertaking rather than as a purely domestic reform.

The legislation followed. The Water (Prevention and Control of Pollution) Act 1974 preceded the amendment; the Air (Prevention and Control of Pollution) Act 1981 and the Environment (Protection) Act 1986 followed it, the last of them enacted expressly with reference to the decisions taken at the Stockholm Conference. India is also a Member of the Environment Programme and hosted the Conference's successor processes in the region.

A worked example

State AA licenses a smelter near its frontier with State BB. Emissions damage forests in State BB and settle on the high seas. State AA says it is exploiting its own resources under its own policies, that the science is not conclusive, and that as a developing State its responsibilities are lower than those of industrialised States. The Development Programme offers State AA assistance in strengthening its environmental regulator.

Sovereignty over resources. Stockholm Principle 21 and Rio Principle 2 both recognise the sovereign right to exploit natural resources pursuant to the State's own policies, environmental at Stockholm and environmental and developmental at Rio. That is the first half of the bargain, and it does not end the matter.

The damage to State BB. The second part of both Principles establishes the responsibility of a State to ensure that activities within its jurisdiction or control do not cause damage to the environment of other States. The Court has endorsed that obligation as customary in the Nuclear Weapons opinion and in Pulp Mills, and by Pulp Mills it is an obligation of due diligence, so the question is what State AA did to regulate and supervise, not whether harm occurred.

The damage on the high seas. The same Principles extend to areas beyond the limits of national jurisdiction, so damage to the high seas is within the obligation even though no State's territory is affected, which connects to [The Common Heritage of Mankind].

The inconclusive science. Rio Principle 15 provides that where there are threats of serious or irreversible damage, a lack of full scientific certainty shall not excuse States from taking cost-effective measures to prevent environmental degradation, applied according to States' capabilities. Its status is contested, the text says approach and not principle, and the Seabed Disputes Chamber has noted only a trend towards its becoming customary.

Differentiated responsibility. Rio Principle 7 provides that in view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. Whether the differentiation follows from contribution or from capability is unsettled, and on either reading it qualifies the content of the obligation rather than removing it.

The Development Programme's offer. It operates at the request of and by agreement with the government, so State AA's consent is the basis of any programme, and the Programme's model is to strengthen State AA's own regulator rather than to regulate in its place.

Change one fact: State BB wants to sue. Nothing in either Declaration confers jurisdiction. State BB must find consent under article 36 of the Statute, as [The International Court of Justice] sets out, or a compromissory clause in a treaty binding on both.

Distinctions table

What it does NOT mean

Neither Programme is a specialized agency. Both are subsidiary organs financed voluntarily.

The Declarations are not treaties. They bind nobody as such; parts of them have become custom.

Principle 21 does not forbid exploitation. It recognises the sovereign right and attaches a responsibility for extraterritorial damage.

The prevention obligation is not a guarantee against harm. Pulp Mills confirms it is an obligation of due diligence.

Principle 15 is not established custom. The text says approach, no authoritative definition exists, some States dispute its status, and the Seabed Disputes Chamber noted only a trend.

Common but differentiated responsibilities does not mean no responsibility. It differentiates the content of a common obligation.

Limits and criticism

Both Programmes depend on voluntary money, so their budgets are set by donors rather than by need, and neither can plan as a treaty-based agency can.

UNEP coordinates bodies that do not answer to it. The specialized agencies have their own constitutions and memberships, and the treaty secretariats answer to their own conferences of the parties, so the environmental architecture is fragmented and the proposals to convert the Programme into a full specialized agency have not succeeded.

Rio Principle 7 was left deliberately ambiguous and the ambiguity has done real damage, because a formula that can mean responsibility according to historical contribution or responsibility according to present capability allows every State to read it in its own favour, and the climate negotiations have turned on that ambiguity for three decades.

Declarations are a slow way to make law. Principle 21 took decades to be accepted as custom, and Principle 15 has not been. A student should draw the general lesson: soft instruments can generate hard law and there is no guarantee that they will, and which principles make the passage is decided by State practice afterwards and not by the text.

Quick revision

Both are subsidiary organs of the General Assembly under Charter articles 7(2) and 22, financed by voluntary contributions, reporting through ECOSOC; not specialized agencies.

UNDP, established 1965 by merging the Expanded Programme of Technical Assistance and the Special Fund. Works at the request of governments; coordinates the system in the field; builds capacity rather than works; publishes the Human Development Report and the Human Development Index.

UNEP, established 1972 by resolution 2997 (XXVII) after the Stockholm Conference on the Human Environment, 5 to 16 June 1972; headquarters Nairobi. Keeps the environment under review; develops international environmental law and supplies secretariats for environmental conventions.

Stockholm Declaration, 16 June 1972: broad policy goals; Principle 21, the sovereign right to exploit natural resources pursuant to a State's own environmental policies, and the responsibility to ensure that activities within its jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction.

Rio Declaration, 14 June 1992: Principle 2, identical prevention language, the sovereign right now pursuant to environmental and developmental policies; Principle 7, in view of the different contributions to global environmental degradation, States have common but differentiated responsibilities, contested as resting on contribution or on capability; Principle 15, the precautionary approach applied according to capabilities, a lack of full scientific certainty not excusing cost-effective measures against serious or irreversible damage, its customary status not established.

The prevention obligation is now custom: endorsed by the International Court in the Nuclear Weapons advisory opinion and in Pulp Mills, which confirms it is an obligation of due diligence.

Test yourself

1. What kind of bodies are UNDP and UNEP?

Subsidiary organs of the General Assembly, established under the power in article 22 of the Charter, read with article 7(2), in pursuit of the purposes in article 55. Neither is a specialized agency within article 57, because neither was established by an intergovernmental agreement and neither has been brought into relationship with the United Nations by an agreement under article 63. The consequences are that they have no member States of their own, no constituent treaty, no separate international legal personality, and no assessed contributions: both are financed by voluntary contributions, so a Member that gives nothing is not in arrears and article 19 does not apply. Each has a governing body of Member States and reports through the Economic and Social Council to the General Assembly, and each exists at the Assembly's pleasure.

2. What is UNDP for?

It was established in 1965 by merging the Expanded Programme of Technical Assistance and the United Nations Special Fund, to end the duplication of two separate development arrangements. It works in a large number of countries and territories, always at the request of and by agreement with the government concerned, so consent is the basis of everything it does. Its distinctive function is coordination of the United Nations system in the field, historically through its resident representative also serving as resident coordinator of the system in the country, which supplies in practice the coordination that the Economic and Social Council can only recommend at headquarters. Its method is capacity building, strengthening a State's own institutions rather than substituting for them, and its Human Development Report introduced the Human Development Index, which measures development by health, education and income rather than by national income alone.

3. State Principle 21 of the Stockholm Declaration and explain its importance.

It has two parts. The first recognises the sovereign right of a State to exploit its own natural resources pursuant to its own environmental policies. The second establishes the responsibility of a State to ensure that activities within its jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Its importance lies in the second part. It converts the general proposition that a State must not knowingly allow its territory to be used contrary to the rights of other States into an environmental rule, and it extends the protection to areas beyond national jurisdiction, which belong to no State and would otherwise be unprotected on a purely bilateral view of obligation. Rio Principle 2 repeats the second part in identical language.

4. What is the present legal status of the obligation of prevention?

It is customary international law. Some States questioned its customary character at the time of Stockholm, but the International Court of Justice expressly endorsed the obligation as a rule of customary international law in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and again in the case concerning Pulp Mills on the River Uruguay. Pulp Mills also settled its character: the State's obligation of prevention is one of due diligence. It is therefore an obligation of conduct rather than of result, requiring the State to deploy the means at its disposal, to regulate and to supervise activities within its jurisdiction or control, so that a State is answerable for a failure of the required conduct and not automatically for the occurrence of damage.

5. Explain Rio Principle 7 and the controversy about it.

The second sentence of Principle 7 provides that in view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. It is accepted as a cornerstone of the sustainable development paradigm and it is among the most contested statements in the Declaration. Taken at face value the formula implies a causal relationship between environmental degradation and the degree of responsibility, so that a State's obligations vary with what it has contributed to the problem. Differentiated responsibility has also been treated as a function of capability, reflecting a State's level of development, which produces different results for a State that has contributed little historically but has substantial present capacity. The ambiguity was deliberate at Rio and it has never been resolved, and it is the central unsettled question in the law of climate change.

6. Is the precautionary approach a rule of customary international law?

Not established as one. Rio Principle 15 provides that the precautionary approach shall be widely applied by States according to their capabilities, and that where there are threats of serious or irreversible damage, a lack of full scientific certainty shall not excuse States from taking cost-effective measures to prevent environmental degradation. Three points qualify it. A European initiative at Rio to include precautionary action as a principle failed to gain support, which is why the text speaks of an approach. There is no single authoritative definition of its content or scope, and some States, including the United States, have questioned its status both as a principle of international law and as a rule of custom, a position advanced before a World Trade Organization panel in the dispute on the approval and marketing of biotech products. And in its 2011 Advisory Opinion the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea took note of a trend towards making the approach part of customary international law, which is as far as the authority goes.