Common but Differentiated Responsibilities and Permanent Sovereignty over Natural
Resources
Introduction
International environmental law attempts to reconcile two competing realities. First,
environmental problems such as climate change, biodiversity loss and marine pollution are
common concerns that require the participation of all States. Second, States have contributed
unequally to environmental degradation and possess unequal financial and technological
capacities to address it.
The principle of Common but Differentiated Responsibilities, or CBDR, addresses this
inequality in the distribution of environmental obligations. At the same time, the principle of
Permanent Sovereignty over Natural Resources, or PSNR, recognises the sovereign right of
States to use their natural resources, subject to the obligation not to cause environmental harm to
other States or areas beyond national jurisdiction.
I. Common but Differentiated Responsibilities
1. Meaning and legal basis
CBDR is most clearly expressed in Principle 7 of the Rio Declaration, 1992, which provides:
“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.”
The principle recognises that environmental protection is a shared responsibility, but that the
nature and extent of obligations may differ between States.
CBDR is founded on two considerations:
1. States have contributed differently to global environmental degradation, particularly
because industrialised countries have historically placed greater pressure on the
environment.
2. States possess different economic, financial, institutional and technological capacities to
prevent or remedy environmental harm.
CBDR therefore does not exempt developing countries from environmental obligations. It
permits obligations to be distributed in a manner reflecting historical responsibility and present
capability.
2. Two elements of CBDR
A. Common responsibility
The first element is the common responsibility of all States to protect the environment.
Environmental problems such as climate change and biodiversity loss cannot be addressed by
individual States acting alone. All States must participate because many environmental resources
and concerns extend beyond national boundaries.
This common responsibility is reflected in the description of certain environmental matters as a
“common concern of humankind.” The preambles of the United Nations Framework
Convention on Climate Change and the Convention on Biological Diversity recognise climate
change and biological diversity as matters of common concern.
Common responsibility therefore means that every State has some obligation to participate in
environmental protection, regardless of its level of development.
B. Differentiated responsibility
The second element is differentiated responsibility.
Although all States must act, their obligations need not be identical. Developing States may be
granted lesser, delayed or differently structured obligations because:
• their historical contribution to the environmental problem may be lower;
• their financial and technological capacity may be limited;
• poverty eradication and development remain pressing priorities; and
• developed States possess greater resources to undertake environmental action.
Differentiation is thus based mainly on:
1. historical contribution to environmental degradation; and
2. capacity to address the environmental problem.
3. Techniques used to differentiate obligations
International environmental agreements use different techniques to implement CBDR.
A. Grace periods
Developing countries may be given additional time to comply with environmental obligations.
Under Article 5 of the Montreal Protocol, developing countries were permitted delayed
compliance with obligations relating to the control of ozone-depleting substances.
This recognises that immediate compliance may impose greater economic and technological
burdens on developing States.
B. Differentiated binding targets
States may be subject to different substantive obligations or numerical targets.
Under the Kyoto Protocol, binding quantified emission-reduction targets were principally
imposed on developed countries listed in Annex I and Annex B. Developing countries did not
have comparable binding numerical reduction targets.
The Kyoto regime therefore created a clear distinction between developed and developing-
country obligations.
C. Financial mechanisms
CBDR is also implemented through financial and technological assistance.
Examples include:
• the Multilateral Fund under the Montreal Protocol; and
• the financial mechanism under the Convention on Biological Diversity, administered
through the Global Environment Facility.
Such mechanisms assist developing countries in meeting the “agreed full incremental costs” of
implementing environmental obligations.
Financial differentiation recognises that environmental commitments may be ineffective unless
developing States receive the resources necessary for implementation.
4. Evolution from the Kyoto “firewall” to flexible differentiation
The Kyoto Protocol created a relatively sharp division, often described as a “firewall,” between
developed and developing countries. Developed States were assigned binding numerical targets,
while developing States were not subject to equivalent obligations.
This rigid distinction became politically difficult to sustain for two reasons:
• the United States rejected an arrangement that did not impose comparable obligations on
major developing economies; and
• emissions from large developing countries increased substantially.
The Paris Agreement, 2015 therefore adopted a more flexible model.
Article 2.2 provides that the Agreement will be implemented to reflect:
“equity and the principle of common but differentiated responsibilities and respective
capabilities, in the light of different national circumstances.”
Under the Paris Agreement:
• all Parties must submit Nationally Determined Contributions;
• obligations are nationally determined rather than imposed through a rigid Annex-based
division;
• differentiation continues through differences in ambition, capacity, finance, transparency
and support; and
• developed countries “should continue taking the lead” in undertaking economy-wide
emission-reduction targets.
Thus, the Paris Agreement did not abandon CBDR. It transformed CBDR from a strict binary
distinction into a flexible and dynamic form of differentiation based on respective capabilities
and national circumstances.
5. Limits of CBDR
CBDR does not automatically create preferential treatment for developing countries in every area
of international law.
In the Responsibilities and Obligations of States Sponsoring Persons and Entities with
Respect to Activities in the Area Advisory Opinion, 2011, the ITLOS Seabed Disputes
Chamber considered the responsibilities of States sponsoring deep-seabed mining activities.
The Chamber held that CBDR did not create a general rule under which developing-country
sponsoring States could be subjected to lower standards of responsibility or liability.
The same due-diligence obligations applied regardless of the sponsoring State’s development
status. Allowing lower standards could produce “sponsoring States of convenience,” where
operators selected developing countries with weaker regulatory capacity to avoid strict
environmental obligations.
The decision shows that CBDR:
• does not automatically reduce all environmental obligations of developing States;
• must be applied within the terms and objectives of the relevant legal regime; and
• cannot be used to undermine uniform protection of areas beyond national jurisdiction.
II. Permanent Sovereignty over Natural Resources and the No-Harm Rule
1. Meaning
The principle of Permanent Sovereignty over Natural Resources recognises the sovereign
authority of a State over the natural resources within its territory.
Its environmental formulation appears in Principle 21 of the Stockholm Declaration and
Principle 2 of the Rio Declaration:
“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.”
The principle contains two inseparable elements:
1. the sovereign right of a State to exploit its own natural resources; and
2. the responsibility not to cause environmental damage outside its territory.
2. Sovereign right to exploit natural resources
The first limb is rooted in UN General Assembly Resolution 1803 (XVII) of 1962 on
Permanent Sovereignty over Natural Resources.
The principle originally developed in the context of:
• decolonisation;
• control over natural wealth;
• foreign investment;
• nationalisation of natural resources; and
• economic self-determination of newly independent States.
It affirms that States have authority to determine how resources within their territory will be
developed and used in accordance with their environmental and developmental policies.
However, sovereignty is not absolute. A State cannot invoke sovereignty to disregard its
international environmental obligations.
3. The no-harm rule
The second limb is the obligation not to cause significant environmental harm to other States or
areas beyond national jurisdiction.
The principle is often associated with the maxim:
Sic utere tuo ut alienum non laedas — use your own property in such a manner as not to injure
another.
The sovereign right to exploit resources and the no-harm obligation are complementary.
International practice does not treat sovereignty as an unrestricted right. The exercise of
sovereignty necessarily carries responsibility for the transboundary consequences of activities
within a State’s jurisdiction or control.
4. Customary status of the no-harm rule
In the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, 1996, the
International Court of Justice stated that:
the general obligation of States to ensure that activities within their jurisdiction and control
respect the environment of other States or areas beyond national control forms part of the corpus
of international environmental law.
This confirms the customary character of the obligation to prevent transboundary environmental
harm.
III. Important Cases on PSNR and the No-Harm Rule
1. Trail Smelter Arbitration, 1941
The Trail Smelter Arbitration is the foundational authority for the no-harm rule.
Fumes from a smelter in Canada caused environmental damage in the United States. The tribunal
held that no State has the right to use or permit the use of its territory in such a manner as to
cause serious injury in another State.
The case established that:
• territorial sovereignty is subject to responsibility;
• States must control harmful activities within their jurisdiction; and
• transboundary environmental damage may result in international liability.
2. Corfu Channel, 1949
In the Corfu Channel case, the International Court of Justice recognised the obligation of every
State not to knowingly allow its territory to be used for acts contrary to the rights of other States.
Although the case was not directly concerned with environmental pollution, its principle
supports the environmental obligation of States to exercise vigilance over activities occurring
within their territory.
3. Lac Lanoux Arbitration, 1957
The dispute concerned a French project affecting waters flowing into Spain.
The tribunal recognised that an upstream State does not require the absolute consent of a
downstream State before using shared waters. However, it must:
• take the downstream State’s interests into account;
• consult and negotiate in good faith; and
• avoid disregarding the rights and interests of the other State.
The case illustrates the importance of cooperation in the exercise of sovereignty over shared
natural resources.
4. Nuclear Tests Cases
In the Nuclear Tests proceedings, New Zealand relied on Principle 21 and the obligation not to
cause environmental harm beyond national boundaries.
In his dissenting opinion when the matter was revived in 1995, Judge Weeramantry relied on the
Trail Smelter principle and treated the no-harm rule, together with precautionary reasoning, as
developing towards customary international law.
5. Gabčíkovo–Nagymaros Project, 1997
The dispute concerned a joint dam project on the Danube River.
The International Court of Justice emphasised the need to reconcile economic development with
environmental protection. The case is important for:
• sustainable development;
• equitable use of shared water resources;
• continuing environmental assessment; and
• cooperation between States.
It demonstrates that sovereignty over shared resources must be exercised consistently with
environmental protection and the rights of other States.
6. Pulp Mills on the River Uruguay, 2010
In Pulp Mills, the International Court of Justice confirmed that the principle of prevention is a
rule of customary international law.
The Court explained that prevention arises from the due diligence required of a State within its
territory.
A State must therefore:
• adopt appropriate laws and regulatory measures;
• monitor potentially harmful activities;
• enforce environmental standards; and
• exercise vigilance over both public and private operators.
The Court also clarified that the precautionary principle does not automatically reverse the
ordinary burden of proof.
7. Indus Waters Kishenganga Arbitration, 2013
The tribunal stated that contemporary customary international law requires States to take
environmental protection into account when planning and developing projects that may cause
injury to a neighbouring State.
The case illustrates that a State’s developmental and resource-utilisation rights must be exercised
consistently with environmental considerations and the interests of other riparian States.
IV. Extraterritorial Environmental Measures
In United States—Shrimp/Turtle, 1998, the WTO Appellate Body adopted a more permissive
approach towards a State’s environmental interest in resources located beyond its territory.
The case concerned United States restrictions on shrimp imports based on the methods used to
prevent harm to migratory sea turtles.
Unlike the earlier Tuna/Dolphin decisions, the Appellate Body accepted that a State could have a
legitimate interest in protecting migratory species located partly outside its territorial jurisdiction.
However, unilateral environmental trade measures remain subject to important limits. They must
not be:
• arbitrary;
• unjustifiably discriminatory;
• protectionist; or
• imposed without serious efforts at international cooperation.
This is consistent with Rio Principle 12, which discourages unilateral measures addressing
environmental problems outside the importing State’s jurisdiction and favours international
consensus.
V. Principle of Preventive Action
The principle of preventive action requires States to prevent or minimise environmental harm
before it occurs.
It is closely connected with the no-harm rule, but is broader in scope.
Following Pulp Mills and the Iron Rhine Arbitration, prevention is understood as a due-
diligence obligation rather than an absolute guarantee that no environmental harm will occur.
A State must exercise best efforts and continuing vigilance by:
• adopting suitable environmental laws;
• establishing regulatory institutions;
• monitoring hazardous activities;
• enforcing compliance;
• supervising private operators; and
• acting where there is a foreseeable risk of environmental harm.
The principle of prevention differs from PSNR and the no-harm rule in two respects.
First, prevention is not merely a limitation derived from State sovereignty. It is an independent
environmental objective aimed at avoiding or reducing harm.
Second, prevention may require a State to prevent environmental damage occurring entirely
within its own territory. It is not confined to transboundary injury.
VI. Principle of Cooperation
The principle of cooperation extends the idea of good neighbourliness into international
environmental law.
Article 74 of the United Nations Charter refers to the principle of good neighbourliness. In
environmental matters, cooperation requires States to:
• exchange relevant information;
• provide prior notification;
• consult affected States;
• negotiate in good faith;
• cooperate during environmental emergencies; and
• devise joint measures for shared resources and transboundary risks.
The principle was illustrated in the MOX Plant Case, Ireland v. United Kingdom, where
ITLOS ordered the parties to cooperate by:
• exchanging information;
• monitoring risks to the marine environment; and
• developing measures to prevent marine pollution.
The Tribunal did not need to determine the final status of the precautionary principle. It relied on
cooperation as an immediate and practical obligation.
Conclusion
CBDR and PSNR are central principles through which international environmental law
reconciles environmental protection, sovereign equality and developmental inequality.
CBDR establishes that all States share responsibility for global environmental protection, while
permitting differentiation according to historical contribution and capability. Its application has
evolved from the rigid developed–developing country division under Kyoto to the more flexible
approach of the Paris Agreement.
PSNR recognises the right of States to exploit their natural resources, but this right is inseparable
from the no-harm obligation. Cases such as Trail Smelter, Corfu Channel, Lac Lanoux, Pulp
Mills and Kishenganga demonstrate that sovereignty must be exercised with due diligence,
prevention and cooperation.
Together, these principles establish that States possess rights over their resources, but those
rights must be exercised consistently with their responsibilities towards other States, the global
environment and future generations.