1. “Sustainable Development” is the notion that economic development, social progress and environmental protection can be made compatible. As the 1987 Report of the World Commission on Environment and Development, Our Common Future noted, “[it is] development that meets the needs of the present without compromising the ability of future generations to meet their own needs”, p.43.

2. 1992 Framework Convention on Climate Change (31 I.L.M. (1992) 849).

3. 1992 Convention on Biological Diversity (31 I.L.M. (1992) 822).

4. See UN Doc A/CONF.151/26/REV.1 (Vol.1), p.3: Declaration of the United Nations Conference on Environment and Development; p.9: Agenda 21; and p.480: Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests.

5. UN Doc A/CONF.151/PC/WG.III/L.20/REV.1 (1992): (Proposal submitted on behalf of the Group of 77).

6. OECD SC/Press (91) 71 (3 Dec 1991), 3: Policy Statement of Meeting of OECD Ministers on Environment and Development.

7. UN Doc A/CONF.151/26 (Vol.IV) (1992), 20.

8. Kovar, J., “A Short Guide to the Rio Declaration” (1993) 4 CJIELP, 128–129: “The absence of these elements from the Rio Declaration made it very difficult for China and some delegations from the G–77 to accept the final text.”Google Scholar

9. Principle 9 Rio Declaration reads “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”.

10. Kiss, A., “The Rio Declaration on Environment and Development” in Campiglio, L. et al. (Eds), The Environment after Rio: International Law and Economics (1994), 61Google Scholar.

11. Malanczuk, P., “Sustainable Development: Some Critical Thoughts in the Light of the Rio Conference” in Ginther, K. et al. (Eds), Sustainable Development and Good Governance (1995). 32–33.Google Scholar

12. D., Magraw, “Legal Treatment of Developing Countries: Differential, Contextual and Absolute Norms” (1990) 1 CJIELP, 69–99.Google Scholar

13. Magraw, loc. cit. supra nn.12,74.

14. See, for example, Arts.5, 7, 8, 9, 10, 11 and 14 1992 Convention on Biological Diversity.

15. Para. 39.3(d) Agenda 21.

16. See, for example, Art.5 (obligations of affected country Parties) and Art.6 (obligations of developed country Parties) 1994 Desertification Convention (33 I.L.M. (1994) 1328).

17. See Art.34 1994 ITTA (33 I.L.M. (1994) 1016) on special measures for developing countries. In particular, Art.34.1: “Developing importing members whose interests are adversely affected by measures taken under this Agreement may apply to the Council for appropriate differential and remedial measures”.

18. See Annexes I and II 1994 Sulphur Protocol (33 I.L.M. (1994) 1540).

19. Art.26 1996 Dumping Protocol allows State Parties to adhere to an adjusted compliance time schedule for specific provisions (36 I.L.M. (1997) 1).

20. See Arts.4.1 and 4.2 1992 Climate Change Convention.

21. On a related issue, both the Climate Change Convention (Art.4.3) and the Kyoto Protocol (Art. 11.2) (37 I.L.M. (1998) 22) utilise the notion of “appropriate burden sharing” to guide the future negotiation of financial commitments between developed country Parties. As with the use of the notion of equity in international environmental law, “burden sharing” presumably requires all relevant considerations to be taken into account before a conclusion is reached.

22. Both the Climate Change Convention and Agenda 21 make constant references to the needs and circumstances of developing countries. In fact, it might be suggested that such references are overused and therefore arguably lose some of their influence.

23. Art.9(a) Forest Principles.

24. The 1994 Desertification Convention includes references to the needs of developing States throughout its text, but particularly in the preamble, and Arts.3(d), 5 and 6.

25. See Art.10 1997 Kyoto Protocol: “All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances…”.

26. Art.3.2 1992 Climate Change Convention. See also Art.4.9 1992 Climate Change Convention: “The Parties shall take full account of the specific needs and special situations of the least developed countries in their actions with regard to funding and transfer of technology”.

27. Art.24.1 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (“Straddling Fish Stocks Convention”) (34 I.L.M. (1995) 1542).

28. Adopted on 1 Nov. 1995 at the Intergovernmental Conference to Adopt a Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (A/51/116, Annex I, App.II). It can be found in (1996) 26 E.P.L. 1, (1996) 37.

29. Seventh preambular paragraph: “the interests and capacities of… in particular small island developing States”.

30. UN Doc. A/CONF.167/9. In particular, see Annex 1: Declaration of Barbados.

31. UNGA Res.2997 (XXVII) (1972).

32. See Arts.15–18 1972 World Heritage Convention (1037 U.N.T.S. 151).

33. Conference Res. C.4.3.1971 Ramsar Wetlands Convention (996 U.N.T.S. 245).

34. For a brief introduction to the GEF, see Sands, P., Principles of International Environmental Law (Vol.1: Frameworks, Standards and Implementation) (1995), 736–74.Google Scholar

35. Decision of 1/7 of the First Conference of the Parties (1992) to the 1989 Basel Convention created two trust funds. The first was an ordinary trust fund to provide financial support for the secretariat; the second fund was the Technical Cooperation Trust Fund designed to “assist developing countries and other countries in need of technical assistance in the implementation of the Basel Convention” (Annex II: Terms of Reference, para.1) (28 I.L.M. (1989) 657).

36. Arts.11 and 21.3 1992 Climate Change Convention, and Arts.21 and 39 1992 Biodiversity Convention.

37. Art.21 1994 Desertification Convention. The Financial Mechanisms under the Climate Change, Biodiversity and Desertification Conventions are all partly administered by the restructured GEF.

38. Art.26.2 1995 Straddling Fish Stocks Convention. Funding is also available at the regional level; Art.IX.3 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (36 I.L.M. (1997) 777) sets up a supplementary conservation fund for the purposes of “monitoring, research, training and projects relating to the conservation of cetaceans”.

39. Para.33.13 Agenda 21.

40. See, for example, para.15(1) UNGA Res. 44/228: “to examine the possibility of a special international fund”.

41. Art.25.2 1995 Straddling Fish Stocks Convention.

42. Art.13.1(1) 1996 London Protocol.

43. See for example, Art.6 1992 Climate Change Convention (education, training and public awareness); Arts.12 (research and training) and 13 (public education and awareness) 1992 Biodiversity Convention; and ss.2 and 3 1994 Desertification Convention.

44. Art.19.1 1994 Desertification Convention.

45. Emphasis added.

46. Nevertheless, the International Law Commission in a 1997 paper noted, “[i]t is the view of the Commission that the economic level of States is one of the factors to be taken into account in determining whether a State has complied with its obligation of due diligence. But a State's economic level cannot be used to discharge a State from its obligation under the present articles” (UN Doc A/CN.4/L554 and Corr.1–2, Add.l and Add.l/CorT.1–2, and Add.2 and Add2/Corr.1, Art3 commentary para.14).

47. Timoshenko, A., “From Stockholm to Rio: The Institutionalization of Sustainable Development” in Lang, W. (ed.), Sustainable Development and International Law (1995), 154.Google Scholar

48. Ibid.

49. 1996 UNEP Final Report of the Expert Group Workshop on International Environmental Law aiming at Sustainable Development, para.43(a).

50. Sands, P., “International Law in the Field of Sustainable Development” (1994) LXV BYIL, 344.Google Scholar

51. Sixteenth preambular paragraph, UNCA Res. 44/228.

52. Chowdhury, S., “Common but Differentiated Responsibility in International Environmental Law. from Stockholm (1972) to Rio (1992)” in Ginther, K. et al. (Eds), op. cit. supra nn. 11, 333Google Scholar.

53. Hurrell, A. and Kingsbury, B., “An Introduction” in Hurrell, A. and Kingsbury, B. (Eds), The International Politics of the Environment (1992), 39.Google Scholar

54. Of course, it would be completely wrong to neglect the fact that much of the present degradation of biological resources is taking place within developing States. The destruction of the Amazonian rainforest is a good example. Nevertheless, despite the fact that such destruction is being sanctioned by the governments of developing States, It is not at all clear where responsibility should lie? Developing States for allowing it to occur? Multinational corporations for actively seeking the timber contracts? Or the international economic system which forces developing States to dear forests so as to provide arable land to grow cash crops to service their international debt?

55. Cf. the 1994 Sulphur Protocol has tried to differentiate not only on each State's contribution to the problem, but also the assimilative capacity of the receiving environment.

56. Hurrell and Kingsbury, op. cit. supra nn.53, 39.

57. ibid.

58. Vasciannie, S., Land-locked and Geographically Disadvantaged States in the International Law of the Sea (1990), 26.Google Scholar

59. Cf. Certain Phosphate Lands in Nauru I.C.J. Report (1992) 240. The case before the International Court of Justice involved the liability of trustee States (and, by analogy, colonial powers), for environmental damage to territories which they administered. However, the court never discussed the substance of the case as Australia paid $107 million in full and final settlement.

60. See Art 3.1 1992 Climate Change Convention, and sixteenth preambular paragraph, UNGA Res.44/228.

61. 1996 UNEP Final Report of the Expert Group Workshop on International Environmental Law aiming at Sustainable Development, para.43(a).

62. See Art.4.4 1992 Climate Change Convention: obligation on developed country Parties to help those “particularly vulnerable to the adverse effects of climate change in meeting the costs of adaptation to those adverse effects”.

63. Sands, P. et al. (Eds), Documents in International Environmental Law (Vol.11A) (1994), 873.Google Scholar

64. Art.4.7 1992 Climate Change Convention; Art.20(4) 1992 Biodiversity Convention. Sands, loc. cit. supra nn.50, 376–377: “This language, reflecting the essence of the interdependence between North and South which transcends all aspects of UNCED, was carefully drafted. In the event that developed countries fail effectively to fulfil their financial obligations, the developing countries' legal commitments will continue to exist, but they will not be called upon to implement them effectively”.

65. Interestingly, the States of Nauru, Tuvalu and Kiribati issued identical statements to the 1992 Climate Change Convention declaring that it was their “understanding that signature of the convention shall in no way constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change, and that no provisions in the convention can be interpreted as derogating from the principles of general international law”; see Sands, op. cit. supra nn.206, 275.

66. See Weiss, E. Brown, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (1989)Google Scholar: “[i]n the intragenerational context, conservation of access implies that all people should have a minimum level of access to the common patrimony”.

67. Twenty-first preambular paragraph, 1992 Climate Change Convention. Hurrell and Kingsbury, op. cit. supra nn.53, 39: “rich countries [must]… provide assistance to the South to cover costs of specific measures to tackle global environmental threats sq that resources are not diverted from development”.

68. UN Doc E/CN.17/1997/8: Report of the Secretary-General: Rio Declaration on Environment and Development: Application and Implementation (10 Feb. 1997), para.40. See also Principle 11 of the Rio Declaration: “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”.

69. 1997 Report of the Secretary-General: Overall progress achieved since the United Nations Conference on Environment and Development: International Legal Instruments and Mechanism, Box 5.

70. International Law Association (ILA), Report of the Sixty-Sixth Conference (held at Buenos Aires, Argentina)(London:ILA)(1995), 116.Google Scholar

71. Third preambular paragraph, 1992 Climate Change Convention.

72. Interestingly, a number of State Parties at the third Conference of the Parties to the Climate Change Convention (1997), which concluded negotiations on the Kyoto Protocol, were adamant that the most polluting developing State Parties should accept greater responsibility for climate change. Such a view did not however prevail, primarily because the Berlin Mandate that began the negotiation process clearly stated developing State Parties were not to be subject to any new obligations at that point in time.

73. Third preambular paragraph, Rio Declaration.

74. 1995 Report of the Expert Group on Identification of Principles of International Law for Sustainable Development, para.78.

75. 1995 Report of the Expert Group on Identification of Principles of International Law for Sustainable Development, para.77.

76. Vasciannie, op. cit. supra nn.58, 25: “the interdependence of States in the international community has generated strong pressures on developed countries to assume responsibility for their developing counterparts”.

77. Berdt Romilly, G. de, “Comment on P. Sand's Paper on Institutionalizing Sustainable Development” in Lang, W. (ed.), op. cit. supra nn.47, 188.Google Scholar

78. Anand, R., Confrontation or Cooperation? International Law and Developing Countries (1987), 45Google Scholar: “Proclaiming the 1970s as the Second UN Development Decade the General Assembly added that ‘economic and social progress is the common and shared responsibility of the entire international community’”.

79. Jordan, A., The International Organisational Machinery for Sustainable Development (1993), 7. Arguably, the effect of such “sweeteners” can be seen in the fact that many more developing States acceded to the Montreal Protocol after 1990, than other environmental conventions, such as the 1979 Bonn Convention, which contain little or no differentiation.Google Scholar

80. ibid.

81. Boyle, A., “Comment on D. Pone-Nava's Paper on Capacity-Building” in Lang, W. (ed.), op. cit. supra nn.47, 138Google Scholar: “the arguments for linking … [financial and technology transfer] provisions to environmental protection measures are different from the focus on economic self-determination that prevailed in the resource conflicts of the 1970s. Now the problem is to persuade developing states to participate in treaty regimes that they may perceive as offering little benefit or as hindering their ”freedom to develop”.

82. ibid.

83. Handl, G., “Environmental Security and Global Change: The Challenge to International Law” (1990) I Y.I.E.L. 9Google Scholar. In fact, trying to beat the “lowest common denominator” problem may actually be considered a further justification for differentiation.

84. ibid.

85. Handl, loc. cit. supra nn.83, 10. However, Handl does go on to say that “retaining uniformity with regard to core obligations while taking into account states' socio-economic conditions, are entirely compatible objectives for multilateral regulatory regimes”. The question must therefore be what he considers “core obligations”, and what effect should socio-economic conditions have upon them?

86. Boyle, op. cit. supra nn.81, 139.

87. I.C.J. Report (1997) 88.

88. Jordan, op. cit. supra nn.79, 7: “the North's offer of extra resources and appropriate access to environmentally friendly technologies, was [at UNCED] both narrow (i.e. it was mainly for global environmental protection) and limited (i.e. it still left open the question of patents and intellectual property rights), but it proved to be sufficiently large to garner the necessary level of developing country support”.

89. Allott, P., Eunomia: A New World Order for a New World (1990), 298Google Scholar: “International society will create an appropriate legal system for itself in conceiving of itself at last as society”.

90. Magraw, loc. cit. supra an.12,99.