key: cord-0831149-085eqbfc
authors: Cordonier Segger, Marie-Claire; Schrijver, Nico J.
title: ILA Guidelines for Sustainable Natural Resources Management for Development
date: 2021-08-30
journal: Neth Int Law Rev
DOI: 10.1007/s40802-021-00190-x
sha: aa710ae2ed5d41e63b970c6d8d0e92ff0389c896
doc_id: 831149
cord_uid: 085eqbfc

nan

Global concern about sustainable natural resource management is increasing significantly. In response, the field of international law on sustainable development has been rapidly evolving. The Committee adopted a broad notion of 'natural resources'. Systematic deliberations focused on: (1) global natural resources that have been recognised as common concerns or the common heritage of humankind, such as celestial bodies, the atmosphere and a stable climate system, biological diversity and ecological systems, and the ocean and its mineral and living resources; (2) regional and transboundary natural resources of global importance such as forests and landscapes, rivers and freshwater ecosystems, and migratory species; and (3) national natural resources of global relevance such as forests and landscapes, land and soil, mineral commodities, including precious minerals, and sustainable energy. The experts on the ILA Committee considered instances in which commitments to the sustainable management of natural resources for development have been enshrined in international treaty law, reflected in the practices of States and international organizations and in the decisions of international courts and tribunals, and increasingly operationalized in international 'soft law' goals, standards and guidelines in relation to different resources, taking into consideration selected national level developments where relevant.

Three principal pillars formed the Work Programme of this ILA Committee: (i) The study and analysis of the contents, legal status and application of the principles and rules of international law related to the sustainable management of natural resources at the international and national levels, as well as an assessment of the practice of States, and international organizations in this field;

(ii) An examination of the relationship between the evolving international law in the field of sustainable development and the principle of the sustainable use of natural resources, particularly analysis of: a. the status of the obligation of States to use natural resources in a manner that is sustainable, including issues such as the obligation to undertake impact assessments of plans and projects that might affect sustainable development, transboundary resources management, the sharing of resources in the world interest and taking into account the interests and needs of future generations; b. innovative instruments to support sustainable use of natural resources and their status and implementation in international and national law, including measures within regional trade and investment agreements and multilateral economic treaties; c. the relationship between natural resource management and the enjoyment of human and peoples' rights; d. decisions of international courts and tribunals on matters related to natural resource management.

(iii) The study of national and international approaches to the regulation of natural resources in developing countries and the impact of such approaches on the sustainable use of natural resources and on the evolution of international law in this field.

In essence, the ILA Committee's work has demonstrated that the world's natural resources, once seen as national and subject to permanent sovereignty, are now increasingly recognized as eliciting common global, regional, transboundary and national concerns, thereby challenging international law to provide more coherent and effective cooperative regimes for sustainable management. Tensions can exist with regard to certain nationally-based resources, however myriad rules and standards now define, guide and direct State practice, providing a roadmap for the progressive development of international law on the sustainable management of natural resources for development.

In the view of the ILA Committee, international law has the potential to shape the principles, regulatory frameworks, institutions, standards and incentives for natural resource management on multiple local, national, regional and global levels. After a thorough review, the Committee's findings suggest that international law both reflects and also serves as a critical catalyst for the design, adoption, and implementation of sustainable natural resource management and resolution of disputes in relation to the use of natural resources. Global natural resources which have been recognised as common concerns or the common heritage of humankind crucially require increased collective commitment and compliance with the international law and practices reflected in the newly adopted ILA Sustainable Natural Resources Guidelines. Regional and transboundary natural resources of global importance are also greatly at risk, and their sustainability depends on the crafting, implementation and enforcement of effective and collaborative international legal regimes. Further, the sustainable management of national natural resources of global relevance can be greatly facilitated by international law. Indeed, international law and non-binding international and national instruments such as standards and guidelines function as a baseline for States and other actors involved in natural resource management, shaping operating environments in which sustainable development will either be fostered, or frustrated.

In assessing the role of international law in this context, it is crucial to take into account how concepts of sovereignty and territory are evolving to accommodate new scientific understanding of interrelated ecological systems and conditions, whereby notions of custodial sovereignty may offer useful insights. The Committee's work has established that sovereignty, of key importance to international law from its inception, is becoming both more fluid and more qualified in the face of shared responsibilities for the sustainable use of transboundary, regional, and global international natural resources, and collaborative regimes for management. The Committee has identified tensions in the context of nationally-based natural resources, and has considered how international legal regimes may offer options to reconcile key concerns, avoiding or reducing the potential for conflict between and within States over resource use, as well as defusing potential clashes between resource conservation and exploitation goals.

Natural resources are also essential to advance nearly all 17 Sustainable Development Goals, and many of their 169 targets, from poverty elimination, to ending hunger, to access to water and energy, to combating climate change and promoting peace, justice and security. 2 The Committee noted that international natural resources management systems could make a vital contribution to the achievement of the Sustainable Development Goals and the 2030 Agenda worldwide, but also that how these regimes are governed will be crucial for their implementation and enforcement. The Committee's work highlights a number of governance mechanisms, ranging from formalized compliance mechanisms to informal industrial and sectoral oversight procedures, which implement essential tools for sustainable natural resources management and the sustainable use of natural resources.

These Guidelines reflect both established international law, including lex lata rules of treaty law that are binding on the Parties as well as customary rules, and also many norms that are still lex ferenda, with a view to future directions in law-making.

The Guidelines are organized in three parts. The First Part (I) presents, sector by sector in a non-exhaustive survey, certain guidelines for the sustainable management of global, regional, transboundary and national natural resources, covering: (1) global natural resources such as celestial bodies, the atmosphere and a stable climate system, biological diversity and ecological systems, and the ocean and its mineral and living resources; (2) regional and transboundary natural resources of global importance such as forests and landscapes, rivers and freshwater ecosystems, and migratory species; and (3) national natural resources of global relevance such as forests and landscapes, land and soil, mineral commodities, including precious minerals, and sustainable energy. The Second Part (II) addresses trends and innovations in international legal instruments and approaches in sustainable natural resources management for development, with a non-exhaustive selection covering trends from: (1) human rights approaches; (2) economic instruments; (3) environment and sustainable development cooperation including scientific collaboration, financing mechanisms, monitoring, reporting and verification, and public participation and access to information and justice; and (4) peacebuilding and post-conflict instruments, including secure land and water access. This Part also covers (5) innovative techniques and requirements in international instruments on the sustainable management of natural resources for development, with special attention to: (a) sustainable resources management through transparency and stakeholder engagement, (b) equitable benefitsharing from sustainable natural resources management, (c) legal indicators of effectiveness for sustainable natural resources management, and (d) control of illicit flows for sustainable natural resources management. The Part further covers a brief, nonexhaustive update on (6) sustainable natural resources management in international dispute settlement. Finally, in the Third Part (III), explanatory notes are provided for the interpretation and application of the 2020 ILA Guidelines on the Role of International Law in Sustainable Natural Resources Management for Development.

These ILA Kyoto Sustainable Natural Resources Guidelines build on and contribute important insights to earlier key normative standards of the ILA, including the ILA Seoul Declaration on the Progressive Development of Principles of Public International Law relating to a New International Economic Order, pub- CONSIDERING 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, EMPHASIZING that States are under a duty to manage natural resources, including natural resources 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, FURTHER EMPHASIZING that States must take into account the needs of future generations in determining the rate of use of natural resources, and that all relevant actors (including States and other stakeholders) are under a duty to avoid wasteful use of natural resources, promote waste minimization policies, and to implement the principle of sustainable use of natural resources, RECALLING that the protection, preservation and enhancement of the natural environment requires global cooperation, and particularly that the change in the Earth's climate and its adverse effects, and the conservation of biological diversity, are the common concern of humankind, that the resources of the Moon and other celestial bodies and of the seabed, ocean floor and subsoil thereof beyond the limits of national jurisdiction are the common heritage of humankind, and that the peaceful exploration and use of outer space is of common interest to all humankind, RECOGNIZING that the principle of sustainable use of natural resources is intertwined with the principle of equity and eradication of poverty, including intra-and inter-generational equity and the right to development; the principle of common but differentiated responsibilities and capabilities; the principle of a precautionary approach to human health, natural resources and ecosystems; the principle of public participation and access to information and to justice; the principle of good governance; and the principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives, and necessitates cooperation and action at all levels, in internal and external relations and involving all actors to ensure sustainable consumption and production patterns, NOTING the existence of myriad binding multilateral, regional and bilateral treaties which directly ensure or relate to the sustainable management of natural resources for development, including those which are considered universal and reflect erga omnes partes obligations, as well as those reflecting lex ferenda principles of international law, as mentioned below, RECOGNIZING that the role of international law in sustainable management of natural resources has changed over time, and can differ depending on the state of international collaboration with regards to the particular resource, the nature and location of the specific resource involved, the renewable or non-renewable character of the resource, the interdependence of ecological systems which sustain the resource, the best available science and technology, distributive justice, substantive equality and benefit-sharing considerations, and other important factors, RECOGNIZING that advances in scientific understanding underscore the interconnectedness of environmental, animal and human health and well-being, and highlight hitherto unacknowledged or underacknowledged interconnections in the atmosphere-land-water-biodiversity nexus, as well as the need to respect ecological limits and planetary boundaries to avoid tipping points and reduce risks to society and nature, TAKING into account the work of independent scientists and scientific bodies, including but not limited to the Intergovernmental Panel on Climate Change (IPCC), the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), the UNCCD Science-Policy Interface (SPI), the Intergovernmental Technical Panel on Soils (ITPS), and the World Ocean Assessment (WOA), and the importance of work being done at the science-policy interface, including in relation to 'nature-based solutions,'

ACKNOWLEDGING also the increasing interest in systems thinking, including the ecosystem approach, as well as traditional and Indigenous knowledge and State practice and scholarship advocating ecocentric approaches in law, RECOGNIZING the importance of effective governance and sustainable peace, including in conflict and post-conflict situations, and that sustainable natural resources management prioritizes equity and the interests of, and benefits for, all persons, including local communities and Indigenous peoples, and future generations, and ensures free, informed and meaningful participation in decision-making, NOTING that care is required to ensure that even well-intentioned sustainable development policies are not enshrined in legislation in such a manner as to create perverse incentives that risk resulting in unsustainable natural resource use, including unsustainable land use or land use change or other forms of maladaptation, ACKNOWLEDGING in the light of the above that the conservation and use of natural resources, which may be viewed as global, regional, transboundary or national resources based on their spatial attributes, raises cooperation and distributional issues of global relevance, HIGHLIGHTING that the natural resources in each of these categories have been the subject of both hard and 'soft' rules of international law, including many binding international, regional and bilateral treaties, the principles of international law on sustainable development and, over time, related codes of practice between States, and have been considered by international courts and tribunals; 

Resources Management for Development, as annexed to this Resolution, which in accordance with the principles of international law on sustainable development, and supported by myriad international legal instruments, are found to be defining and guiding the sustainable management of natural resources in the world today, and also providing a roadmap for the progressive development of international law on the sustainable management of natural resources for development.

In accordance with the principles of international law on sustainable development, and supported by myriad international legal instruments, these 2020 ILA Guidelines on the Role of International Law in Sustainable Natural Resources Management for Development are found to be defining and guiding the sustainable management of natural resources in the world today, and also providing a roadmap for the progressive development of international law on the sustainable management of natural resources for development.

These Guidelines reflect both established international law, including lex lata rules of treaty law that are binding on the Parties to key instruments and also customary rules, and also many norms that are still lex ferenda, with a view to future law. They are organized in three parts.

The First Part (I) presents, sector by sector in a non-exhaustive survey, certain guidelines for the sustainable management of global, regional, transboundary and national natural resources, covering: (1) global natural resources such as celestial bodies, the atmosphere and a stable climate system, biological diversity and ecological systems, and the ocean and its mineral and living resources; (2) regional and transboundary natural resources of global importance such as forests and landscapes as regional and transboundary natural resources, rivers and freshwater ecosystems as regional and transboundary natural resources, and migratory species as regional and transboundary natural resources; and (3) national natural resources of global relevance such as forests and landscapes, land and soil, mineral commodities, including precious minerals and sustainable energy.

The Second Part (II) addresses trends and innovations in international legal instruments and approaches in sustainable natural resources management for development, with a non-exhaustive selection covering: (4) trends from international human rights, economic, environmental, peacebuilding and post-conflict instruments related to the sustainable use of natural resources for development including human rights approaches; economic instruments; environment and sustainable development cooperation including scientific collaboration, financing mechanisms, monitoring, reporting and verification, and public participation and access to information and justice; also peacebuilding and post-conflict instruments; and secure land and water access. This Part also covers (5) innovative techniques and requirements in international instruments on sustainable management of natural resources for development, with a non-exhaustive selection including: sustainable resources management through transparency and stakeholder engagement, equitable benefit-sharing from sustainable natural resources management, legal indicators of effectiveness for sustainable natural resources management, and control of illicit flows for sustainable natural resources management. The Part further covers a brief, non-exhaustive update on (6) sustainable natural resources management in international dispute settlement.

Finally, in the Third Part (III), notes are provided for the interpretation and application of the 2020 ILA Guidelines on the Role of International Law in Sustainable Natural Resources Management for Development.

1.1 C elestial Bodies 1.1.1 Outer space, including the Moon and other celestial bodies, is recognized as being the province of all humankind and its exploration and use for peaceful purposes the common interest of all humankind. The resources of the Moon and other celestial bodies are conferred the status of common heritage of humankind under the Moon Treaty, which envisaged a regime of non-appropriation and joint management. 10 This system of non-appropriation and joint management is intended to address natural resources found in outer space, including their exploration and exploitation, as well as spaces of cultural heritage in space.

1.1.2 Several key treaties, instruments and standards offer important insights in the evolving role of international law in the sustainable management of celestial bodies. 11 International law promotes more sustainable management of celestial bodies by establishing several key norms. States should not take unilateral action regarding the exploitation of natural resources located on celestial bodies. Nor may States allow the use and deployment of satellites or other objects into space if they are likely to disintegrate and cause space junk, which can harm celestial and planetary resources as well as Earth itself. At the same time, international law requires that States must comply with the international regulatory system created under the jurisdiction of the International Telecommunication Union with regard to the launching and placement of satellites and celestial communications tools. Furthermore, the principle of equitable benefit forms part of the rules governing the sustainable management of outer space and celestial bodies. International law regulates the anthropogenic emissions of greenhouse gases (GHG) to achieve a stabilization of GHG concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system and promotes sustainable management of this resource by establishing several key norms. Specifically, States have committed to holding temperature increases to well below 2ºC above pre-industrial levels, and to pursue efforts to limit temperature increases to 1.5ºC above pre-industrial levels. States recognize that this requires global peaking of GHG emissions as soon as possible, rapid and sustained reductions thereafter in order to achieve a balance of anthropogenic emissions by sources and removals by sinks around 2050 (so called 'carbon neutrality' or 'net zero emissions'). 14 In order to reach this goal, States shall undertake domestic legal and policy measures to reduce GHG emissions. In this context, States should also take action to conserve and enhance GHG sinks and reservoirs, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems, including soils, wetlands, peatlands and mangroves, which pose risks of releasing GHGs on a significant scale when disturbed or not managed sustainably. Under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, States must put forward progressive Nationally Determined Contributions (NDCs) every five years, which are to reflect their highest possible ambition, and need to report on the progress on implementation and achievement of their NDCs. Several international law instruments have established that States shall be subject to oversight committee review in instances of alleged failures to meet their treaty-based obligations, for example the Paris Agreement Implementation and Compliance Committee.

1.2.3 Further, States seeking to engage in the promotion and use of renewable energies should do so in a way that is sustainable and reduces GHG emissions into the atmosphere, as well as avoid the further degradation of biodiversity. Importantly, States may fulfil such obligations in a flexible and cost-effective way, also in keeping with the principle of sustainable development and the principle of common but differentiated responsibilities and capabilities, in the light of different national circumstances, and make use of domestic and international transfer or trading mechanisms to this end (e.g. International Emission Trading, Joint Implementation, Clean Development Mechanism or the new international carbon credit mechanism established by Article 6 of the Paris Agreement, which is still to be implemented). This requires coordination between international climate change regimes and international economic regimes, such as the international trade and investment regime, with a view to ensure mutual supportiveness. Procedures, including impact assessments and safeguarding mechanisms, must be put in place to avoid the risk of GHG emission leakage and maladaptation, double counting or other perverse incentives leading to unsustainable natural resource use, including unsustainable land use or land use change.

1.3.1 Biodiversity plays an important role in maintaining the life-sustaining systems of the biosphere, and its conservation is a common concern of humankind. 15 International, regional and global cooperation among States and stakeholders, including intergovernmental organizations, civil society and the private sector, is essential for the conservation of biodiversity and the sustainable use of its components. Several key treaties, instruments and standards offer important insights in the evolving role of international law in the sustainable use of global biodiversity and ecological systems. 16 International law regulates human activities affecting biodiversity and ecological systems to promote the conservation and sustainable use of these resources, as well as the fair and equitable benefit-sharing from the utilization of genetic resources, by establishing several key norms. States have sovereign rights over their own biological and genetic resources, and are responsible for conserving biodiversity and for sustainably using its components. States are encouraged, as far as possible and as appropriate, to cooperate with other States, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for conservation and sustainable use.

1.3.2 States should uphold the targets adopted and requirements identified for the protection of biodiversity and ecological systems found in the treaty regimes, associated protocols and other 15 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD) Preamble. 16 In order to assess the evolving role of international law in the sustainable management of global biodiversity and ecological systems, the related instruments. States shall, in accordance with their conditions and capabilities, develop national strategies, action plans or programmes for the conservation and sustainable use of biodiversity, or adapt existing strategies, plans or programmes for this purpose. In accordance with their conditions and capabilities, States shall also integrate, as far as possible and as appropriate, conservation and sustainable use into relevant sectoral or cross-sectoral plans, programmes and policies. In this context, States should conserve biodiversity and sustainably use its components, both above and below ground, terrestrial and marine, and use an ecosystems approach.

1.3.3 Noting that in-situ conservation is a fundamental requirement for the conservation of biological diversity, States must, as far possible and as appropriate, establish a system of protected areas or areas where special measures need to be taken to conserve biodiversity; regulate or manage biological resources important for the conservation of biodiversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas; rehabilitate and restore degraded ecosystems and promote the recovery of threatened species through the development and implementation of plans or other management strategies; establish or maintain means to regulate, manage or control the risks associated with living modified organisms that are likely to have adverse environmental impacts that could affect conservation and sustainable use; prevent the introduction of, control or eradicate invasive alien species which threaten ecosystems, habitats or species; develop or maintain necessary laws and/or regulations for the protection of threatened species and populations; adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats; and regulate or manage processes and categories of activities determined to have significant adverse effects on biodiversity.

1.3.4 States should integrate consideration of the conservation and sustainable use of biological resources into national decision-making; adopt measures on the use of biological resources to avoid or minimize adverse impacts on biodiversity; protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use; support local populations to develop and implement remedial action in degraded areas; and encourage cooperation between governmental authorities and the private sector in developing methods for sustainable use. States should also introduce Environmental Impact Assessment (EIA), Strategic Environmental Assessment (SEA) or Sustainability Impact Assessment (SIA) procedures for projects that are likely to have significant adverse effects on biodiversity in order to avoid or minimize such effects, and allow for public participation. Finally, States must take appropriate legislative, administrative or policy measures for fair and equitable benefit sharing from the utilization of genetic resources with the providing country. Benefits should be shared with Indigenous peoples and local communities where they have the right to grant access to genetic resources under national law.

1.3.5 Beyond these requirements, States shall report on their activities, including those relating to protection of biodiversity and ecological systems. In conjunction with this, some international law instruments establish that States shall be subject to oversight committee review in instances of alleged failures to meet their treaty-based obligations, such as the Convention on International Trade in Endangered Species of Flora and Fauna (CITES), while others are based on the duty to cooperate, such as the Convention on Biological Diversity (CBD) or the Convention on Migratory Species (CMS), out of recognition inter alia of the different capabilities of States in enacting and enforcing implementing laws and policies. Additionally, States are encouraged to establish specialized collaborative regimes for the protection of particular migratory terrestrial or marine species and ecosystems, such as the CMS and the UN Convention on the Law of the Sea (UNCLOS) Straddling Stocks Agreement.

1.4.1 The natural resources of the global ocean and its ocean basins are subject to overarching duties of conservation and cooperation. Mineral resources of the 'Area' (the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction) are recognized as common heritage. 17 Marine biodiversity conservation is recognized as a common concern of humankind. 18 Although oceans physically straddle international and national jurisdictions, their ecological connectivity makes them truly global resources. This is reflected in the existing instruments that address oceans as global resources, listed below, and in the current progressive development of international law and policy which is in the process of integrating the traditional law of the sea with science-based international environmental law, especially with respect to conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (ABNJ).

1.4.2 In order to assess the evolving role of international law in the sustainable management of the global ocean, a collection of key treaties, instruments, and standards offers important insights. 19 International law regulates oceans to promote more sustainable management of these resources by establishing several key norms. States must respect the res communis nature of high seas resources; extraction of seabed minerals in areas beyond national jurisdiction is subject to international oversight. Under international treaty law and jurisprudence, States are required to undertake a number of activities -such as conservation, precaution, due diligence, EIAs and best environmental practices -to ensure sustainable management of oceans as natural resources.

States should also apply concerted management and conservation of migratory fish stocks found within their territorial waters so as to protect them as an international resource rather than classify as them as purely domestic resources. Further, flag States are required to ensure that the vessels sailing under their jurisdiction follow sustainable management and conservation practices for fishing living resources found in international waters. Ocean governance also requires full and ambitious implementation of the UNFCCC and Paris Agreement. 17 

2.1.1 Forests and landscapes are of global relevance for the atmosphere and a stable climate system, and for the conservation and sustainable use of biodiversity. Forests and landscapes, including wetlands and coastal areas, can be considered as regional or transboundary resources, located across States, bisected by State borders, but still functioning ecologically as a unified system. In this way, while forming part of the territory of a sovereign State, these resources have an additional impact and importance beyond national boundaries, and actions taken regarding them at the State level will have repercussions throughout a broader area. This is reflected in existing international law and policy instruments, as well as regional law instruments and policy mechanisms that address forests and landscapes.

2.1.2 In order to assess the evolving role of international law in the sustainable management of regional and transboundary forests and landscapes a collection of key treaties, instruments, and standards offers important insights. 20 International law regulates forests and landscapes as regional and transboundary resources to promote more sustainable management of these resources by establishing several key norms. States should create and implement national forestry management policies, strategies and practices which recognize the varied nature of interests encompassed in forests and land management, including applying the ecosystem approach, and addressing GHG emissions and removals from land use, land-use change, and forestry. States should also prevent, and restore, land and forest degradation through sustainable management practices. States should factor the need for transboundary conservation and management into their plans and strategies, and enter into consultations to implement this in practice. In addition, States should identify, protect, conserve, present and pass to future generations, natural areas of outstanding universal value from the point of view of science, conservation or natural beauty. Further, States should ensure that regulatory actions related to forestry and land use also cover private and industry actors involved in extraction, harvesting and use of these resources and associated value chains. Additionally, States may enter into voluntary agreements on forests and landscapes which further collaboration with other States, international organizations and private actors in order to undertake actions to reduce emissions from deforestation and forest degradation, conserve forest carbon stocks, sustainably manage forests, and enhance forest carbon stocks.

2.2.1 Many rivers and freshwater ecosystems, including groundwater and aquifers, transect or even form borders and boundaries, making them a legal and societal resource of more than a particular 20 In order to assess the evolving role of international law in the sustainable management of regional and transboundary forests and landscape ecosystems, the Committee surveyed the CBD supra note 15, Preamble, arts 5 and 6; UNFCCC supra note 12, art 4; Paris Agreement supra note 13, art 5; UNCCD State. In this way, while these bodies of water might originate in the territory of a sovereign State, as resources they have an impact and import beyond national boundaries and actions taken regarding them at the State level will have repercussions throughout a broader area. This is reflected in the existing international law and policy instruments, as well as regional law instruments and policy mechanisms, that address rivers and freshwater ecosystems.

2.2.2 In order to assess the evolving role of international law in the sustainable management of regional and transboundary rivers and freshwater ecosystems, a collection of key treaties, instruments, and standards offers important insights. 21 International law, in addition to applicable regional law, regulates rivers and freshwater ecosystems as regional and transboundary resources to promote more sustainable management of these resources by establishing several key norms. States should ensure that there is harmonization in the legal and governance systems relating to transboundary and regional watercourses, including obligations to work together to ensure this harmonization. As part of this, States must include the duty to notify other riparian States of their development plans that may affect the rivers substantially and consult in their management of watercourse resources. Additionally, in managing transboundary and regional watercourses, States should include key sustainable development law principles, such as the no significant harm principle, the polluter pays principle and the precautionary principle, and adopting the ecosystem approach, States should include consideration of related land and soil use and management decisions, which impact water regulation and quality. When addressing the development of watercourses or wetlands directly or indirectly, States should use transboundary and domestic Environmental Impact Assessments (EIAs) or Sustainability Impact Assessments (SIAs) as tools to ensure that there is a full assessment of likely impacts, taking into account public concerns and contributions. Further, States should work together to create guidelines for the management of shared rivers and freshwater ecosystems.

2.3.1 Many species are highly migratory as a matter of standard course and cross boundaries and regions, making them a legal and societal resource of more than a particular State. In this way, 21 In order to assess the evolving role of international law in the sustainable management of regional and transboundary rivers and freshwater ecosystems, while these species might originate in the territory of a sovereign State, as resources they have an impact and import beyond national boundaries and actions taken regarding them at the State level will have repercussions throughout a broader area. This is reflected in the existing international law and policy instruments, as well as regional and bilateral law instruments and policy mechanisms, that address straddling stocks 22 and highly migratory species. 23 2.3.2 In order to assess the evolving role of international law in the sustainable management of regional and transboundary migratory species, a collection of key treaties, instruments, and standards offers important insights. 24 International law regulates migratory species as regional and transboundary resources to promote more sustainable management of these resources by establishing several key norms. States are required to provide for the protection, conservation and management of migratory species which traverse their territories in any form (land, air or water). States may work together to establish and implement targeted agreements for handling the migration patterns of specific migratory species with the purpose of ensuring sustainable management of the species at the national and regional levels. Further, States are required to provide special protections for endangered migratory species that traverse their territory and to ensure that they are not targeted for poaching or other illegal activities. 22 UNCLOS supra note 13, art 63. 23 UNCLOS supra note 13, art 64 and Annex I. Also, see the Straddling Stocks Agreement supra note 19, which sets out principles for the conservation and management of those fish stocks and establishes that such management must be based on the precautionary approach and the best available scientific information. The Straddling Stocks Agreement elaborates on the fundamental principle, established in the UNCLOS, that States should cooperate to ensure conservation and promote the objective of the optimum utilization of fisheries resources both within and beyond the exclusive economic zone. 24 In order to assess the evolving role of international law in the sustainable management of migratory species, the Committee surveyed the global CMS supra note 16; the CBD supra note 15; CITES supra note 16 Preamble; UNCLOS supra note 13, art 63; Straddling Stocks Agreement supra note 19; Ramsar Convention supra note 13, Preamble and art 2(6); and the WHC supra note 20. The Committee also surveyed regional instruments such as the Convention on Nature Protection 

3.1.1 In addition to their global relevance in relation to the sustainable management of the atmosphere and a stable climate system and the conservation and sustainable use of biodiversity, as well as transboundary or regional relevance, forests and landscape ecosystems within States are still considered to play a significant role in international environmental and socioeconomic concerns. They are thus subject to international laws and policies as well as national laws and enforcement mechanisms and, increasingly, an international human rights law lens, which impacts on their sustainable management. This is reflected in existing international law and policy instruments, as well as national law instruments and policy mechanisms that address forests and landscape ecosystems.

3.1.2 In order to assess the evolving role of international law in the sustainable management of national forests and landscape ecosystems, a collection of key treaties, instruments, and standards offers important insights. 25 Taken together, international law, in addition to applicable domestic law, regulates forests and landscape ecosystems as national resources to promote more sustainable management of these resources by establishing several key norms. States should implement national strategies to plan for the conservation and sustainable use of forests and landscapes, including, where appropriate, facilitating changes to existing laws and rules which could hinder these efforts.

3.1.3 States should, in particular, create and implement national strategies to reduce deforestation and forest degradation, as well as for the conservation of carbon sinks and reservoirs, sustainable management of forests, and enhancement of forest carbon stocks. They should adopt the ecosystem approach to the management of forests and wetlands, such as mangroves. In conjunction with this, States should work towards the wise use of wetlands to ensure maintenance of ecological character, through the ecosystem approach, and in the context of sustainable development. Furthermore, States should incorporate transparency and monitoring systems in their design and implementation of these strategies, including the use of reporting and verification mechanisms. In order to reduce forest-based emissions to prevent catastrophic climate change, developing States should also include actions for reducing emissions from deforestation and forest degradation, conservation of forest carbon stocks, sustainable management of forests and enhancement of forest carbon stocks (REDD+) in their NDCs and strengthen national institutions for the implementation of REDD+ strategies; regularly assess the potential for advancing holistic, durable solutions to the intertwined issues of tropical deforestation, rural livelihoods, and food security; and review the REDD+ monitoring, verification and reporting system in national institutional frameworks and policies in order to improve the technical management of forest and landscape ecosystems.

3.1.4 Lastly, States should also promote ways to adequately control international trade in tropical timber, to prevent illicit flows of illegal timber and foster trade only from sustainably managed and legally harvested forests, and promote the sustainable management of tropical timber producing forests. 25 In order to assess the evolving role of international law in the sustainable management of national forests and landscape ecosystems, the Committee surveyed the CBD supra note 15, art 6; the UNFCCC supra note 12, art 4; Paris Agreement supra note 13; UNCCD supra note 13; the ITTA 2006 supra note 16; Ramsar Convention supra note 13, art 3(1); WHC supra note 20, arts 2, 4, 5, and 11 (4) 

3.2.1 In addition to their global relevance in relation to the sustainable management of the atmosphere and a stable climate system, and the conservation and sustainable use of biodiversity, as well as transboundary or regional relevance, land and soils within States still play a significant role in international environmental, societal, cultural and security concerns and are thus subject to international laws and policies as well as national laws and enforcement mechanisms. Furthermore, land and soil are increasingly viewed through an international human rights lens, which impacts on their sustainable management. 26 These elements are reflected in existing international law and policy instruments, as well as national law instruments and policy mechanisms that address land and soil.

3.2.2 In order to assess the evolving role of international law in the sustainable management of national land and soil, a collection of key treaties, instruments, and standards offers important insights. 27 Taken together, international law, in addition to applicable domestic law, regulates land and soil as national resources to promote more sustainable management of these resources by establishing several key norms. areas experiencing serious drought and/or desertification through effective National Action Plans as well as through international cooperation and partnerships, including long-term integrated strategies focusing on improved productivity of land, and the rehabilitation, conservation and sustainable management of land and water resources, leading to improved living conditions. States shall strive to achieve a land degradation neutral world through setting land degradation neutrality (LDN) targets and collaboration. Further, States should designate wetlands of international significance within their territories, adopting an ecosystem approach, and identify areas of relevance under the World Heritage Convention.

3.2.4 States have a duty to prevent pollution of land and soils, including by chemical and other types of pollutants such as pesticides and fertilizers, or resulting from mining, and take appropriate measures to avoid the risks presented by such products or activities to human health and the environment, including through adequate legal and institutional measures at national level. They should implement regional conventions with provisions directed towards the sustainable management of soils, as well as sectorial treaties, dealing for example with water, air, protected areas and species, hazardous substances, pollution and waste, which implicitly have the objective of protecting land and soil.

3.2.5 States should recognize land as a multifaceted resource, including its economic, social, environmental, cultural and spiritual relevance, and as the basis of the livelihoods of millions of people worldwide. Further, States should recognize and respect all legitimate land tenure rights and their holders, including customary rights and other rights based on social legitimacy, safeguard legitimate tenure rights against threats and infringements, promote and facilitate the enjoyment of these rights and provide access to justice in case of their infringement, especially as secure tenure rights are key for more sustainable land and soil management. Non-state actors also have a responsibility to respect legitimate tenure rights, and States should take appropriate steps to protect against infringements and abuse of land tenure rights.

3.2.6 States should incorporate sustainable use and management of land and soil to promote food security and human nutrition as part of their agricultural, planning, and land management laws, policies and practices. States and non-state actors should promote responsible investments in land, agriculture and food systems, including through promoting the conservation and sustainable management of land and natural resources.

3.2.7 States should cooperate to implement the Revised World Soil Charter, as further elaborated in the Voluntary Guidelines for Sustainable Soil Management (VGSSM). In particular, States should pursue the overarching goal to ensure that soils are managed sustainably and that degraded soils are rehabilitated or restored, and that actions at all levels are informed by the principles of sustainable land and soil management and contribute to the achievement of a land degradation neutral world in the context of sustainable development. States should promote sustainable soil management and strive to create socio-economic and institutional conditions favourable to sustainable soil management by removal of obstacles, in particular those associated with land tenure, the rights of users, access to financial services and educational programmes, taking into account the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT). They should participate in the development of multi-level, interdisciplinary educational and capacity-building initiatives that promote the adoption of sustainable soil management by land users; support research programs that will provide sound scientific backing for development and implementation of sustainable soil management relevant to end-users; and incorporate the principles and practices of sustainable soil management into policy guidance and legislation at all levels of government. States should develop a national soil policy, maintain a national soil information system and contribute to the development of a global soil information system, as well as developing a national institutional framework for monitoring implementation of sustainable soil management and the overall state of soil resources.

3.3.1 Mineral commodities, including precious minerals, can occur in terrestrial or marine jurisdictions, in the Area and in outer space. In the two latter cases, their status of common heritage of humankind is recognized in specific regimes (see above, Sections 1.1 and 1.4) . In the former case, they serve as predominantly national natural resources. However, even within this context, it is important to note that mineral commodities and precious minerals within States are still considered to play a significant role in international environmental concerns due to the risks entailed in the extraction and trade of minerals and are thus subject to international laws and policies as well as national laws and enforcement mechanisms and, increasingly, an international human rights lens also impacts on their sustainable management. This is reflected in the existing international law and policy instruments that address mineral commodities, including precious minerals, as well as in national law instruments and policy mechanisms.

3.3.2 In order to assess the evolving role of international law in the sustainable management of national mineral resources, a collection of key treaties, instruments, and standards offers important insights. 28 Taken together, international law, in addition to applicable domestic law, regulates mineral commodities and precious minerals as national resources to promote more sustainable management of these resources by establishing several key norms and a wide range of standards targeting the private sector engaged in extractive resources. States shall gradually reduce and, when feasible, eliminate the extraction and use of minerals when it poses serious health and environmental threats, including in relation to GHG emissions, sinks and reservoirs, and the prevention of dangerous anthropogenic interference with the climate system. 

African States should examine their domestic tax laws and policies in order to prevent illicit financial flows. 30 Similarly, as noted in the Niamey Declaration on Ensuring the Upholding of the African Charter in the Extractive Industries Sector, 31 there is a lack of transparency, accountability and public participation in African extractive industries, and several steps can be taken to transform national legal and governance frameworks to address illicit financial flows. As recognized in the 2012 African Union's Resolution on a Human Rights-Based Approach to Natural Resource Governance, 32 transparency, accountability and public participation in the extractive sector is key. 33 The three elements of transparency, accountability and public participation are intricately intertwined, and must be present for resource governance programs and policies to be effective at regional, national and local levels, and to prevent and mediate natural resource driven conflicts, States are encouraged to ensure that "transparency and accountability mechanisms are in place prior to, and during, initiatives to develop and exploit natural resources." 34 There is a need for full reporting on revenues collected from natural resource activities and on how such revenues have been allocated to programs, governments and communities, and to address governance secrecy or information monopolisation by advancing public availability, accessibility and accuracy of information on relevant laws, regulations and policies.

3.3.5 States should ensure that there are adequate certification and customs screening systems in place to recognize and prevent the trafficking in conflict diamonds. In this context, States should ensure that there are measures in place to enforce bans on these products where an exporting State cannot meet the internationally required standards for certification of minerals.

3.4.1 The promotion of sustainable energy markets may be international or regional, while many of the rules governing generation of sustainable, clean energy are national, and subject to provincial, cantonal or other municipal laws and policies. This noted, both sustainable energy generation and transmission, as well as energy efficiency, have important transboundary and international environmental implications, and are thus subject to international rules and regimes, as well as domestic laws and enforcement mechanisms. This is reflected in the existing international law and policy instruments, as well as national and sub-national legal instruments and mechanisms that address sustainable energy.

3.4.2 In order to assess the evolving role of international law in the sustainable management of national energy resources, a collection of key treaties, instruments, and standards offers important insights. 35 35 In order to assess the evolving role of international law in the sustainable management of clean and renewable energy, the Committee surveyed the global IRENA supra note 13; the UNFCCC supra note 12 Preamble; Kyoto Protocol supra note 27; Paris Agreement supra note 13; UNCLOS supra note 13; the WTO Agreement supra note 28. The Committee also considered a number of regional instruments including the Energy Charter Treaty supra note 13 and Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects (adopted 17 December 1994, entered into force 16 April 1998) 2081 UNTS 3 (Energy Charter Protocol on Energy Efficiency); APC-EU Cotonou Partnership Agreement (adopted 23 June clean energy as a national resource to promote more sustainable management of this resource by establishing several emerging key norms. States are encouraged to use trade and investment policy instruments as leverage for stronger sustainable and renewable energy-related activities and governance systems while still ensuring they align to applicable trade and investment law obligations at the international, regional and bilateral levels. States should ensure that their domestic legal and regulatory systems for energy promote and incentivize the generation and use of sustainable and renewable energy across all sectors and the economy as a whole, and support energy citizenship. There is a need to address the interconnectedness between sustainable energy and the management of food and water resources through a nexus governance approach. There is also a need to consider activities in relation to ocean resources such as methane hydrates. States should ensure that there is transparency and oversight in the regulation and management of sustainable and renewable energy as a sector. Procedures, including impact assessments and safeguarding mechanisms, must be put in place to avoid the risk of maladaptation, for example resulting from well-intentioned policies creating perverse incentives leading to unsustainable natural resource use including unsustainable land use or land use change. 

4.1.1 International human rights instruments provide protection for individuals in terms of rights that are linked to the ability to access natural resources and the ability to enjoy natural resources that are not degraded, polluted or otherwise threatened. Many regional human rights conventions and national constitutions 36 and the UN Special Rapporteur on Human Rights and the Environment have highlighted human rights linkages to other global agendas including climate change and biodiversity. The majority of human rights treaties contain reporting requirements that obligate States to disclose their compliance with the terms of the applicable treaty. This is coupled with the creation of a designated treaty oversight mechanism, which reviews and evaluates State compliance with treaty terms and provides guidance on treaty application. Through these oversight systems, there have been innovative treaty interpretations, which have increasingly entrenched the sustainable use of natural resources, particularly in human rights law jurisprudence.

4.1.2 The application of human rights instruments by international courts and tribunals, and particularly by the regional courts, such as the Caribbean Court of Justice, European Court of Human Rights and the Inter-American Human Rights system, represents significant innovation for the protection of natural resources. Innovating by extensive and evolutive interpretation of treaties, these courts demonstrate a deeper understanding of the ways in which natural resources and human rights are linked and contribute to reaffirming, acknowledging or developing the scope of rights and duties related to the enjoyment of natural resources from hard and soft law. Among these rights and duties is the right of Indigenous peoples to enjoy the natural resources in their traditional lands as well as the right of both current and future generations to derive a benefit from the protection of natural resources confirmed by the Inter-American Court of Human Rights. Further, there is the recognition of the duty to conduct EIAs or reviews and the right of prior consultation and to free, prior and informed consent for transfers and/or exploitation of territory and natural resources. In the application of international law, courts have innovated by expanding the scope of their jurisdiction going beyond the individual rights and acknowledging these rights to communities and groups of peoples, notably Indigenous peoples. The work of the quasi-judicial jurisdiction in the application of human rights law, such as the Human Rights Committee, the Committee on the Elimination of Racial Discrimination at the international level, at regional level the Inter-American Commission on Human Rights and the African Commission on Human and Peoples' Rights, and national courts (e.g. the Colombian Constitutional Court) and arbitrations, has also played a crucial role in recognizing rights to access and enjoyment of natural resources, as well as regarding the imputation of responsibility for the violation of these rights, including putting at stake the responsibility of private corporations in international and transnational matters. 36 See African Charter on Human and Peoples' Rights supra note 35; and Arab Charter on Human Rights (adopted 23 May 2004), art 38. Note also ongoing discussions on a "Global Pact for the Environment" which may provide a "right to an ecologically sound environment" and a "duty to care for the environment," Global Pact for the Environment, 'The Pact -Content' (Global Pact Environment, 2020) <https://globalpactenvironment.org/en/the-pact/content/> accessed 8 November 2020.

4.2.1 In recent years, there has been an increasing recognition of the links between international trade and sustainable development, including in the context of continuing debates in the World Trade Organization (WTO) and the implementation of trade rules. Certain progress has been achieved in, for instance, trade negotiations on the liberalization of environmental goods and services (ESG) which aim to enhance the potential of trade to foster rather than frustrate more sustainable management of natural resources.

4.2.2 Regional and bilateral economic agreements, such as Regional Trade Agreements (RTAs), are also being adopted, integrating and accompanied by specific measures promoting sustainable development. Many such agreements include, for instance, interpretive statements, reservations or general exceptions similar or broader than those found in the General Agreement on Tariffs and Trade under the WTO, deployed with increasing frequency to ensure that the trade agreements do not unintentionally constrain environmental, social or sustainable development measures, such as the adoption of rules to prevent unsustainable exploitation of natural resources, to incentivize green procurement, or to provide subsidies for more sustainable development. Further, in a new generation of regional and bilateral trade and investment agreements, many States are adopting explicit provisions to avoid negative material or normative impacts arising from trade and investment liberalization, encouraging and structuring collaboration for more optimal or sustainable use of natural resources. In certain inter-regional, regional and bilateral economic agreements, Parties are adopting specific chapters on "Trade and Sustainable Development" and other relevant arrangements such as work programmes for collaboration of the Parties to implement mutual commitments on the environment or sustainable development. 37 Additionally, economic agreements have begun to include a number of more specialized provisions which protect the environment and natural resources, such as climate finance mechanisms, the promotion of trade in sustainable products, services or technologies, disaster risk reduction collaboration, commitments to encourage subsidies for clean and renewable energy resources or organic agriculture, the inclusion of standard setting for low-carbon development, and the use of monitoring and assessment mechanisms to review the impacts of trade agreement implementation. Further, regional and bilateral trade agreements now increasingly scrutinized through mechanisms such as environmental, human rights or sustainability impact assessments and public consultations, both during negotiations and throughout their implementation. and other treaties on sustainable development. In transboundary problem identification and scientific collaboration, for instance, States are now coordinating international scientific scans and studies, or attempting to provide independent and relatively neutral summaries and compilations of scientific data. Often, in environmental matters, it is a question of sounding the alarm on problems. Data is shared with State decision-makers and, in certain instances, becomes the platform for States and non-State actors to reach consensus on environmental problems and work to address them together, using, for example, Environmental Impact Assessment (EIA), Strategic Environmental Assessment (SEA) or Sustainability Impact Assessment (SIA) procedures. In some cases, cooperation arrangements have also supported efforts to 'fail forward' into cooperative instruments to address them.

4.3.3 The establishment of effective and reliable financial bodies to support activities agreed in international treaties, and therefore, also compliance, is crucial. Increasingly ambitious financial mechanisms are being established as States and others start to invest more deeply in addressing environmental problems. For instance, the Global Environment Facility has supported projects on sustainable resources use and has sought assurances that projects will not harm natural resources. Similarly, new methods of financing for clean development and renewable energy were tested in the UNFCCC through the Kyoto Protocol, and a sustainable development mechanism is included in the Paris Agreement. These funds are being set in place to implement the law, convening and facilitating the engagement of States which guide and contribute to the funds, and providing guidance to ensure adherence to agreed principles, rules and procedures.

4.3.4 Transparent reporting, monitoring and verification practices have also become more common in international law, having arguably been piloted by State Parties to the treaties discussed herein. For instance, the adoption of operational information-sharing arrangements, such as regular peer-reviewed monitoring, reporting and verification (MRV) systems, public online databases, and clearinghouses for information-sharing have engaged States and non-State actors in the international community in treaty implementation. By encouraging greater transparency in the treaty negotiation and implementation process, in part through the provision of important national information, international law and procedures have advanced. Regular submission of 'national communications' has become nearly a standard obligation for States under treaties on the environment.

4.3.5 Treaty regimes on the environment rely upon public participation and dissemination of information to generate awareness, ownership and support for their work on all levels, and to increase the availability of relevant scientific information, and the UN assists in this process. In the treaties, Parties commit to promote public participation within their decision-making regimes, for instance through the granting of Observer status to non-governmental organizations with an interest in the subject matter, encouraging multilateral engagement of stakeholders in a manner similar to the Observer status granted to ECOSOC-accredited organisations. Public access to information through technology and media is generating new potentials for meaningful public participation and engagement (e.g., UN's Papersmart online tool). International and national registries are being increasingly encouraged, serving to increase citizen knowledge and awareness of science, law and other developments related to the subject matter of international agreements. Many agencies work to provide independent, accessible information in relation to the objectives and obligations of the agreements. This public engagement in turn supports States' efforts to comply with treaty obligations, encouraging partners and stakeholders to contribute to the treaty.

4.3.6 Treaties on the environment and sustainable development support States in resolving disputes on treaty interpretation peacefully, both through the inclusion of dispute settlement and advisory opinion provisions in the accords, and through the encouragement of their appropriate use. Dispute settlement mechanisms, such as the International Court of Justice, the International Tribunal on the Law of the Sea and others, are constituted by treaty regimes. The awards and decisions of these bodies not only resolve disputes that might otherwise further degrade the contested areas, but also assist States to understand their binding obligations and principles, interpreting the treaty law with an independent and respected voice in both contentious and advisory cases. Under these treaties, partners assist States to comply with their treaty obligations, providing analysis, technical knowledge, and training, and hosting forums for judges and officials to discuss new developments in international law that affect environmental protection. There are also increasing opportunities, on a procedural and substantive level, for non-state actors, including individuals as well as groups and peoples, to rely on internationally derived law relating to the sustainable management of natural resources. 

4.4.1 In recent decades, the promise of international law in post-conflict contexts and environmental peacebuilding has come to the forefront, with significant developments in forums including the International Law Commission (ILC). Environmental peacebuilding has been defined as integrating natural resources and the environment in conflict prevention, mitigation, resolution, recovery, cooperation and peacebuilding. Principle 1 of the ILA New Delhi Principles sets out State 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" and the "duty to manage natural resources, including natural resources 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." Sustainable use in the context of environmental peacebuilding may refer to the obligation to prevent transboundary environmental damage resulting from the use of natural resources, as well as sustainability with respect to the use of the natural resources themselves, e.g. preventing over-exploitation and ensuring sustainable livelihoods. 

5.1.1 In the context of international agreements on sustainable development, reporting requirements are increasingly becoming a standard method through which the terms of the agreement are implemented and oversight is provided. Reasons for this trend include the necessity of creating a compliance assessment structure for the agreement and the requirement that the international community and stakeholders, especially civil society members at all levels, have access to information on environmental progress, further environmental and other threats, including threats to natural resources. In addition, the requirement for publicly available EIA promotes transparency and stakeholder participation, and provides an anchor for review. These forms of assessment are innovative in that they attempt to create regulatory processes regarding the sustainable use of natural resources at the national and international levels.

5.1.2 Another critical aspect of oversight in the context of international agreements on sustainable development is the focus on inclusion, transparency and the promotion of public awareness of the potential environmental and natural resource impacts of activities subject to the terms of the treaty. Included in these areas are, increasingly, efforts to foster public empowerment and engagement in the discussions and debates regarding proposed activities falling within the ambit of the agreement. By bringing the voices of individuals and civil society into a realm which was formerly reserved for national and international actors, these provisions are innovative. For example, the Minamata Convention on Mercury, one of the newest MEA instruments in international law, requires States to generate information on mercury stocks and mercury production in their territories, as well as to regulate the production and storage of mercury in their jurisdiction. At the same time, the Minamata Convention provides for significant control and oversight of mercury transportation, import and export within and between States.

5.1.3 In terms of generating transparency within certain sectors, the corporate social responsibility initiative the Extractive Industry Transparency Initiative (EITI) serves as an example of a transnational framework for enhancing transparency in revenue flows to the governments of resource States. The EITI requires disclosure of revenue flows to the governments of resource States and disclosure of contracts, as well as the disclosure of beneficial owners of companies. By generating these forms of transparency requirements at the national and sectoral levels, governments and corporations can be held accountable to the public for their actions and decisions as well as for the financial distributions they make as a result of resources generated in this context. In addition, transparency measures such as those under the EITI structure are also intended to serve as a counterweight to the potential for companies to commit acts of bribery and/or illicit influence peddling as well as for government actors to misuse profits from the trade in and licensing of natural resources. This method of including transparency as a core element of accountability and anti-corruption is innovative as a means to promote the sustainable use of natural resources.

5.2.1 A growing number of treaties and other legal instruments refer to benefit-sharing from the use of natural resources. Benefit-sharing emerged as a manifestation of the international legal principles of equity and international cooperation, evolving at the intersection of natural resources governance and human rights law -particularly the right to development. The principle may, depending on the resource, promote procedural fairness and/or equitable outcomes in the sustainable management of natural resources. It may also require the sharing of monetary and/or non-monetary benefits, including economic, environmental, social and intrinsic benefits. It has been applied to relationships between States, within States, and between generations.

The application of the benefit-sharing principle varies depending on the natural resource involved, as well as its nature and location. The principle's best known expression is in the biodiversity regime, which calls for the fair and equitable sharing of the benefits resulting from the utilization of genetic resources and associated traditional knowledge held by sovereign States or their Indigenous peoples and local communities, and in the associated regime addressing plant genetic resources for food and agriculture. It is also present as a voluntary mechanism in the climate regime, namely REDD+. Furthermore, it forms part of the rules governing the sustainable management of outer space, an area of common interest, and celestial bodies, to which the common heritage of humankind is applicable. Additionally, it is being addressed in the emerging rules governing deep sea bed mining in the Area under UNCLOS, which is also the common heritage of humankind.

Binding commitments on equitable benefit-sharing are challenging to negotiate. For example, negotiations have been particularly complex on potential benefit-sharing from marine genetic resources in ABNJ under the oceans regime. Negotiations on intellectual property rights over genetic resources and traditional knowledge, folklore and genetic resources have not produced a treaty after nearly twenty years of negotiations. Yet, the principle will remain relevant to debates and negotiations in international fora given the economic and social inequalities between and within States recognized in the New Delhi Declaration, which will likely grow due to the global economic impact of the COVID-19 pandemic. As such, benefit-sharing may be used as an innovative requirement in future treaties and instruments addressing sustainable resources management.

5.3.1 Assessing the effectiveness of international law related to sustainable development is an essential task, particularly in the context of sustainable use of natural resources, and yet it remains somewhat difficult to implement. In this context, the creation of legal indicators for effectiveness of international law related to sustainable development is critical, although questions as to how to collect information and convert data into indicators and the need to avoid misuse of data remain. The innovative idea of developing and applying these legal indicators offers the chance to generate a larger system in which assessment of sustainable use of natural resources can be conducted.

5.3.2 In this context, a potential approach to analysis could build on the existing systems in place for establishing legal indicators in other fields that link to MEAs and natural resource governance, including three measures of effectiveness: (i) legal effectiveness, which focuses on the issue of compliance; (ii) behavioural effectiveness, which focuses on the role of international law in influencing and even changing actors' behavior towards achieving the treaty's objectives; and (iii) problem-solving effectiveness, which focuses on the ability of the legal rule to solve or mitigate the problem it was designed to address.

The control of illicit flows of natural resources, including flows of endangered species, wildlife, fisheries resources, timber and minerals, and the attendant human rights abuses and loss of biodiversity, is a significant element of promoting and ensuring the sustainable use of natural resources at the international and national levels. Methods of control have been crafted as national and international law, each form containing innovative elements in terms of the obligations placed on actors throughout the international and national systems involved and the ways in which these actors can be held accountable.

5.4.2 A number of States, such as the United Kingdom and France, have enacted legislation addressing and banning conflict minerals of various forms as well as the forced labor used to extract them. Further, under the Dodd Frank Act enacted by the United States and subsequent regulations enacted by the US Securities and Exchange Commission, there is an obligation for companies to disclose if they are using minerals originating in the Democratic Republic of Congo or neighboring States. Additionally, the EU has established regulations requiring that EU importers of tin, tantalum and tungsten, related ores and gold from conflict areas follow certain due diligence obligations. Perhaps the best-known binding instrument in this regard is the Kimberley Process Certification Scheme for Rough Diamonds, which establishes a series of requirements for the certification of diamonds as non-conflict diamonds and the ability to trace diamonds to the source of their extraction. Additionally, inspired by non-binding instruments such as the United Nations Guiding Principles on Business and Human Rights and the OECD Due Diligence Guidance for Responsible Mineral Supply Chains of Minerals from Conflict Affected and High-Risk Areas, States have gradually started to adopt binding legislation on the regional and national levels to address the application of disclosure and due diligence to corporate practice and regulation in the context of conflict minerals and other resources which can be yielded through illicit activities.

6.1 In recent years, a number of international courts and tribunals, as well as arbitral bodies and other international dispute settlement mechanisms, have addressed issues relating to sustainable management of natural resources. The decisions of these dispute settlement mechanisms demonstrate openness to the recognition of sustainable management of natural resources as a principle, if not indeed a duty, that is justiciable across a variety of jurisdictional competencies in a variety of specific contexts.

Tuna Products (Article 21.5), they clarified that Members can legitimately pursue conservation policies for the sake of protecting both non-living and living natural resources, 54 even when they are not endangered or threatened by extinction, and even if such policies have extraterritorial effects. 55 6.4 At the regional level, key decisions have come from the African Charter on Human and Peoples' Rights system, Caribbean Court of Justice, European Court of Human Rights and the Inter-American Human Rights system. 56 Further, a number of quasi-judicial and other bodies have issued findings and decisions that are critical in entrenching the sustainable management of natural resources in organizational as well as international, regional and national legal practice. 57 The bodies include the World Bank Inspection Panel, 58 Inter-American Development Bank Independent Consultation and Investigation Mechanism, 59 Committee on the Elimination of Racial Discrimination, 60 Human Rights Committee, 61 and multilateral environmental agreement enforcement mechanisms such as those associated with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 62 and the North American Agreement on Environmental Cooperation. 63 6.5 At the national level, the seminal Minors Oposa case from the Philippines opened a new way of thinking about the ability of current generations to assert their rights and the rights of future generations in the context of climate change and natural resources. 64 The trend has continued through to the 2019 Urgenda decision in the Netherlands, which saw the Supreme Court uphold a determination that the State was not complying with the obligations it had undertaken regarding climate change. 65 Since the months since Urgenda, a spate of similar climate litigation claims

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This includes the recognition of shared fishing rights in the Pulp Mills on the River Uruguay 43 case and of species such as whales in Whaling in the Antarctic, 44 and the sustainable use of shared natural resources in Gabčikovo-Nagymaros, particularly the separate opinion of Justice Weeramantry. 45 Similar trends can be observed in the Permanent Court of Arbitration's Abyei-Sudan case, 46 relating to recognition and protection of Indigenous knowledge of and interests in natural resources, Iron Rhine (Belgium v Netherlands) case, 47 recognizing the obligation of Belgium to undertake environmental impact assessments, and Indus Waters Arbitration (Pakistan v India) case, 48 recognizing the importance of shared waterways and to achieve development while minimizing impacts on water flow diversion; in decisions of the International Centre for Settlement of Investment Disputes (notably Chevron Corporation and Texaco Petroleum Corporation v Ecuador, 49 relating to the ability of States to abrogate contracts relating to the exploitation of national oil resources, and Gauff (Tanzania) Ltd v United Republic of Tanzania, 50 relating to contractual obligations of a State stemming from water and sewerage contracts with foreign entities); and of the International Tribunal on the Law of the Sea in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, 51 establishing State requirements to use the precautionary principle in the conduct of contract-based exploration for natural resources in the Area and Request for an advisory opinion submitted by the Sub

even when this entails restricting international trade, via conservation-related exceptions. In China -Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum and China -Measures Related to the Exportation of Various Raw Materials, WTO adjudicators have in particular recognized Members' right to design broad natural resources conservation programmes in a way that responds to their own concerns and priorities in light of the principle of sustainable development and the principle of sovereignty over natural resources

Case Concerning the Gabčikovo-Nagymaros Project

Whaling in the Antarctic

Certain Activities Carried Out by Nicaragua in the Border Area

Whaling in the Antarctic

Separate Opinion of Vice-President Weeramantry

Iron Rhine Arbitration

Indus Waters Kishenganga Arbitration, Pakistan v India, Final Award

PCA Case No

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, ITLOS Case 17, Advisory Opinion

Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission, ITLOS Case 21, Advisory Opinion

Measures Related to the Exportation of Various Raw Materials -Reports of the Panels

Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum -Reports of the Panels

United States: Standards for Reformulated and Conventional Gasoline, the WTO adjudicators have also considered that clean air qualifies as an exhaustible natural resource: WTO, United States: Standards for Reformulated and Conventional Gasoline -Report of Panel

Import Prohibition of Certain Shrimp and Shrimp Products -Report of the Panel

Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products

See Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission on Human and Peoples' Rights (Communication No

Social and Economic Rights Action Centre & the Centre for Economic and Social Rights v Nigeria

/96

Fishermen and Friends of the Sea v Environmental Management Authority and Atlantic LNG

Sustainable Development in International Courts and Tribunals

See Cambodia -Forest Concession Management and Control Pilot Project: Request for Inspection -Inspection Panel Report and Recommendation

Pipeline Project -Outcome of the Inspection Panel's Investigation

See Marena Renovables Wind Project Review, Case No

Decision 1 (68) (United States of America

Aarhus Convention Compliance Committee Case Concerning Armenia

Aarhus Convention Compliance Committee Case Concerning the European Union

Aarhus Convention Compliance Committee Case Concerning France

Aarhus Convention Compliance Committee Case Concerning Romania

Migratory Birds