EIRP Proceedings, Vol 15, No 1 (2020)

The Global Pact for the Environment- a Necessity and One of the

Answers to the Worldwide Environmental Crisis-Where to?

Elena Loredana Prvu¹

Abstract: At the UN Summit in New York on 19 September 2017, the French President announced all the representatives of the world States that he wanted to establish, under the aegis of the UN, what would be not just a design project, but a global pact for the environment, therefore a new instrument of international environmental law, whose goal would be supplementing the international environmental law, enhancing the coherence thereof and enabling the implementation of the obligations set forth in such law, which may take the form of an international treaty adopted by the General Assembly. The initiative belongs to the Club des juristes and aims to collect in a single text the great international principles of environmental law and make them binding, due to the possibility of enforcing them in courts of law. This text could become the backbone of international environmental law.

Keywords: rights; Global Pact; Environment; international treaty

1. Introduction

At the UN Summit in New York on 19 September 2017, the French President announced all the representatives of the world States that he wanted to establish, under the aegis of the UN, what would be not just a design project, but a global pact for the environment, therefore a new instrument of international environmental law, whose goal would be supplementing the international environmental law, enhancing the coherence thereof and enabling the implementation of the obligations set forth in such law, which may take the form of an international treaty adopted by the General Assembly.

The initiative belongs to the Club des juristes and aims to collect in a single text the great international principles of environmental law and make them binding, due to the possibility of enforcing them in courts of law, a conclusion that the Club des juristes² reached in June 2017.

The idea of a Global Pact for the Environment, however, is not new³. For over thirty years, the international lawyer community has asked States to adopt a text that would codify general environmental principles.

As early as 1987, the Brundtland Report mentioned a list of “Legal Principles for Environmental Protection and Sustainable Development”. In turn, the International Union for Conservation of Nature (IUCN) proposed in 1995 a draft International Covenant on Environment and Development. In 2015, the adoption of such an international treaty was also one of the proposals of the Environment Commission of the Club des juristes, in its report “Increasing the Effectiveness of International Environmental Law – Duties of States, rights of individuals”. Other initiatives of the civil society are heading in the same direction (e.g. the draft CIDCE Pact)⁴.

The 2017 project of the international network of experts is therefore a continuation of previous works.

The Global Pact for the Environment is based on the Rio Declaration, Rio+20, the 2030 Agenda adopted in 2015 and the Paris Agreement, which entered into force in 2016⁵.

As a part of the dynamic created by the 2015 Paris Agreement, this Pact would go further, as opposed to sectorial agreements that are only aimed at one sector each (climate, biodiversity, pollution, etc.) and may be applied transversally to all environmental policies.

The 2030 Agenda allows, through the 17 Sustainable Development Goals⁶ (SDGs), to ensure a link between the fight against extreme poverty and the conservation of the planet. The harmonisation of international environmental legislation, supported by the Pact, will thus facilitate the implementation of the 2030 Agreement.

The Paris Agreement specifically focuses on climate change. Adopting a global pact for the environment would be complementary to providing a comprehensive response to defining the basic principles of international environmental law.

YannAguila, chairman of the Environment Commission of the Club des juristes, author of the Pact, said it was essentially a codification work to bring together the general principles of environmental law in a single “umbrella” text, as stated particularly in the 1972 Stockholm Declaration or in the 1992 Rio Declaration⁷, considering that these texts have great symbolic and political value, but cannot be enforced before a judge.

The Pact also aims to recognize a third generation of fundamental rights, rights related to the protection of the environment⁸.

The draft text, which was prepared by the Environment Commission of the Club des juristes and handed to the French President on 24 June 2017 in Sorbonne, contains 26 articles listing rights and obligations for States and citizens, including:

1) Principle of intergenerational equity

No decision may be taken without due consideration to future generations (Article 4). Thus, present generations “shall ensure that their decisions and actions do not compromise the ability of future generations to meet their own needs.”

2) Principle of cooperation

The Parties that have acceded to the Pact shall immediately notify other States of any natural disasters or other emergencies that are likely to produce harmful effects on the environment (Article 7) and shall cooperate “promptly, in good faith and in a spirit of global partnership” to help concerned States (Article 18). In case of armed conflicts, States shall take all feasible measures to protect the environment (Article 19).

3) “Polluter-pays” principle

It is the polluter’s duty to pay. Prevention, mitigation and remediation costs for pollution, and other environmental disruptions and degradation are, “to the greatest possible extent”, borne by their originator (Article 8). Moreover, “Parties shall ensure the right of effective and affordable access to administrative and judicial procedures, including redress and remedies, to challenge acts or omissions of public authorities or private persons which contravene environmental law” (Article 11).

4) Principle of non-regression

There is no turning back. Parties cannot allow activities or adopt standards that have the effect of “reducing the global level of environmental protection guaranteed by current law” (Article 17).

5) Monitoring and control mechanism

The pact is accompanied by a monitoring and control mechanism. Each State shall present periodically a report on the implementation of the Pact before a committee of independent experts (Article 21). “It operates in a transparent, non-adversarial and non‑punitive manner.” Each review shall give the concerned country the possibility to review the state of the environment on its territory and the progress made in implementing the provisions of the Pact.

Furthermore, the Committee shall take into account the principle of differentiation between developed and developing countries (Article 20). The control modalities and procedures shall be established one year after the Pact enters into force. The first review shall take place two years after the beginning of the mandate and then at a frequency not exceeding four years.

2. Authorising the Opening of Negotiations on a Global Pact for the Environment

The main objectives of the Pact, as set out by its proponents, are⁹:

• To include in a legally binding treaty the fundamental principles of environmental law, already included in universal political declarations, so as to make them enforceable before internal courts;

• To make universal the main provisions of legally binding conventions that are not universal;

• To add new principles, in view of new challenges: for instance, the draft text prepared by the lawyers includes principles of non-regression and resilience, as well as a duty of care for the environment;

• Other more innovative principles were incorporated, such as non-regression of legislative and regulatory standards.

The subject matter of the Pact falls largely within EU policies and competences, in particular in the field of environmental protection [Article 192(1)] and, as it may have consequences on EU law, negotiations cannot be conducted without EU participation¹⁰ (to this end, the EU shall make sure that this international instrument remains as consistent as possible with the relevant EU legislation and other international law instruments in the field). Therefore, it is necessary to act within the meaning of Article 216(1) TFEU, so as to protect the integrity of EU law and preserve consistency between the provisions of international law and those of EU law on the protection of the environment.

On 20 September 2017, Columbia University in the City of New York, together with the Columbia Center on Sustainable Investment, the Club des juristes, the Sustainable Development Solutions Network, etc. organised a conference dedicated to the Global Pact for the Environment, highlighting the fact that it meant to collect in a single text the great principles of environmental law, something that “did not exist”, and it was considered that, at first sight, it was very complicated that the project become an international treaty.

Following the New York meeting, an ad hoc group of States, led by France, drafted a procedural resolution that was submitted to the United Nations General Assembly for adoption, being available electronically; it was presented officially at a later date, the initiators calling for the resolution to be adopted in March 2018 in order for negotiations to begin officially.

By this resolution, the General Assembly would, among others:

• Decide on the development of an international instrument, called the “Global Pact for the Environment”, which would have the objective of completing international environmental law, enhancing its coherence and facilitating the implementation of its obligations;

• Decide to set up an open intergovernmental working group, before the organisation of an intergovernmental conference, so as to negotiate a Global Pact for the Environment and meet in New York between 2018-2020;

• Call on the President of the General Assembly to appoint two co-facilitators to lead the negotiations and consultations of the working group, in coordination and in regular consultation with all Member States, regional groups and all relevant stakeholders.

On 15 February 2018, the draft resolution already had 48 co-sponsors, of which 14 EU Member States. There were also three informal meetings in New York (22 January, 6 February and 14 February 2018) to pre-negotiate the draft resolution concerning which the positions of the European States were adopted.

On 3 March 2018, the Council adopted a Recommendation for a Council Decision authorising the opening of negotiations on a Global Pact for the Environment.

The objective of this recommendation is to obtain from the Council the authorisation for the Commission to negotiate the future Global Pact on behalf of the EU¹¹. The legal basis for the Council to authorise the opening of negotiations is Article 218(3) and (4) TFEU (the Pact contains appropriate provisions enabling the Union to become a Party to it and to fully participate in any mechanisms to be created for its implementation, allowing the Union to take part in the debates of this group, as the provisions of the Pact are consistent with the relevant EU legislation and the relevant multilateral agreements to which the Union is a Party).

In this context, the Environment Council of 5 March 2018 reiterated the need for the EU and Member States to support the initiative, throughout the consultations and the negotiations alike. Following the works, the French delegation presented the main goals of the Global Pact for the Environment to the European Ministers by way of an annex, as well as a planning for further negotiations so that the Pact would be adopted by 2020.

The European Union has reviewed some of the most advanced and comprehensive environmental policies in the world, and is committed to promoting sustainable development worldwide. As a strong global actor, it has led a number of processes and negotiations, such as the 2030 Agenda for Sustainable Development and the Paris Agreement for Climate Change.¹²

On 10 May 2018, the UN General Assembly adopted the resolution opening the way for negotiating a Global Pact for the Environment¹³ with a very large majority¹⁴ (out of the 193 UN Member States only 143, including China, supported the resolution, five opposed it – the USA, Russia, Syria, Turkey and the Philippines – seven abstained, including Iran, and 38 did not vote¹⁵). France welcomed the adoption of this resolution¹⁶, which marks a decisive step in mobilising the international community towards environmental protection. The resolution was co-sponsored by one hundred countries, which proves strong membership.

According to the resolution’s text, the Assembly decided to establish an open‑ended working group to consider a technical and evidence-based report identifying and assessing possible gaps in international environmental law and environment-related instruments with a view to strengthening their implementation. The report was presented at the Assembly’s seventy‑third session at the United Nations Headquarters in New York on 3 December 2018¹⁷ and it provided a platform to discuss options to address these gaps.

The report examines how countries could meet the general principles of environmental law in an international instrument and was entitled “Gaps in International Environmental Law and Environment-Related Instruments: Towards a Global Pact for the Environment” (document A/73/419)¹⁸. It notes that today there are more than 500 agreements on environmental protection, but they are incomplete and not fully implemented. An agreement on a common set of guidelines could clarify, harmonise and reinforce these principles at international level. The report also highlights legal deficiencies, particularly to prevent cross-border air pollution or to protect soil and land from erosion.

Some of the report’s conclusions¹⁹ are as follows:

- The review and analysis of the state of international environmental law and environment‑related instrumentsreveals deficiencies at multiple levels. There are significant gaps and deficiencies with respect to the applicable principles of environmental law, particularly as regards their content and legal status;

• Environmental principles affect the way in which environmental treaties can be interpreted, and may be used, if necessary, to fill gaps between the rules laid out in the instruments. Such principles include the duty of States to prevent any significant environmental harm, exercise precaution in making decisions which may harm the environment, so as to provide public access to information and decision-making involving potentially significant environmental harm and cooperate in environmental protection;

• The biodiversity cluster of treaties is also characterised by issues of ineffective implementation; ineffectual processes relating to monitoring, reporting, review and verification; and the absence of or inadequate procedures and mechanisms to promote and enforce compliance;

• Freshwater resources are regulated through a patchwork of global, regional and basin agreements; such agreement often use ambiguous terms, which leads to uncertainty and a lack of consistency as to how they are applied;

• With respect to the marine environment, while the United Nations Convention on the Law of the Sea provides a comprehensive set of rules for the protection and preservation thereof, various complementary instruments cover various activities depending upon the subject matter and the geographical location concerned. This sectoral approach complicates the implementation of integrated approaches. Compliance mechanisms are not common and disparities still remain in terms of assessing implementation. No specific instruments comprehensively address the modern challenges of marine debris, plastics and microplastics. While the Convention provides a unifying legal framework to remedy fragmentation, the role it may play in that regard has not yet been fully realised;

• The connection between multilateral environmental agreements and environment-related instruments remains problematic due to the lack of clarity of several environmental principles, both content-wise and status-wise. There is a need for greater mutual supportiveness of rules concerning trade and environment;

• Environmental concerns addressed in treaties have not generally evolved and do not yet include issues such as climate change and biodiversity. Furthermore, there are significant gaps in the regulation systems of hazardous substances, activities and wastes;

• The implementation of international environmental law at national level is constrained in many countries by a lack of legislative provisions, appropriate financial resources, environmental technologies and institutional capacities;

• At the international level, implementation is also constrained by the lack of clarity of numerous environmental principles. Compliance mechanisms are extremely inadequate and must be enhanced to promote effective implementation of multilateral environmental agreements.

The report highlights that the international environmental law and its effective implementation could be enhanced by a global, unifying international instrument that would collect all the principles of environmental law. Such an instrument “may improve harmonisation, predictability and legal certainty”.

The report concludes that States must seize the opportunity to use international environmental law in new and dynamic ways to create strong and effective governance so as to better safeguard the environment for future generations.It is essential that States and the United Nations work together to address gaps in international environmental law.

On “Human Rights Day” – 10 December 2018, France, Senegal, theInternational Union for Conservation of Nature (IUCN) and the International Council of Environmental Law (ICEL) assembled a panel of international experts at the United Nations Headquarters, to comment upon the recommendations in the report. The document promoted the international recognition of the right to a healthy environment. The debates took place seventy years after the adoption of the Universal Declaration of Human Rights. Their message was that it is now time to recognise a new generation of fundamental rights and, in particular, the right for all persons to live in a healthy environment.

Attendance at the sessions of the special working group as observers was open to non‑governmental organisations in consultative status with the Economic and Social Council, as well as to those that were accredited to relevant conferences and summits.

The Assembly²⁰ decided that the ad hoc open-ended working group shall hold the following sessions, in accordance with established practice:

1. An organizational session will be held for a duration of three days, at the end of the seventy-second session of the General Assembly, in New York, to examine matters related to the organisation of the committee’s procedures, the open-ended working group, including the duration and number of its substantive sessions;

2. Substantive sessions that will be held in Nairobi (January, March and May), the first of which is to take place at least one month after the submission of the report of the Secretary-General.

Thus, the first substantive session of the Ad Hoc Open-ended Working Group on a Global Pact was held on 14 January 2019, at the United Nations Office in Nairobi, Kenya. During this one-week session, the delegations (about 288 participants, including governmental delegates, representatives of international organisations and the civil society) examined the report of the UN Secretary-General.

The first substantive session was described by some delegates as the opportunity to “take stock of the situation”, while others underlined the need to comply with the established policies of the multilateral environmental law system and distinguish between normative, institutional and implementation gaps.

Some have begun to consider the idea of ​​a “worthy result” for the pact’s initiative, for instance, in the form of a political statement or a similar package. Others considered the term “pact” a more faithful and less threatening way for the proposal, noting the potential example offered by the Global Compact for Migration.²¹

It has been suggested that the Pact should respect national sovereignty and existing multilateral environmental agreements and help national lawyers to manage the principles of environmental law (enshrined in over 300 multilateral environmental agreements) with greater consistency, uniformity and efficiency.

Many have asked for more time to prepare for this. But some have warned that in the global context of an increasingly degraded environment, the international community must find a balance between acting rapidly and acting well.

Others have been optimistic that the process will eventually lead to a series of useful recommendations and that some of the initial intentions of the Pact will be resuscitated, as a delegate pointed out at the end of the conference: “At the end of the tunnel there is light, but we are still in the tunnel.”

As far as dispute settlement mechanisms are concerned, the absence of an international environmental court was highlighted, while other delegates favoured the use of existing institutions.

With little time available to prepare recommendations to the UN General Assembly by the end of the first half of 2019, even the most ambitious delegations pointed out that there could be many risks that would accompany any attempt to impose a new regulatory consensus.

At the meeting in Nairobi, the delegates approved the agenda for the second substantive session, including an article on exploring options to overcome any gaps in international environmental legislation and related instruments.²²

The second meeting in Nairobi, on 18-20 March 2019, focused more on the conclusions of the Report of the UN Secretary-General and included discussions concerning the possibility of improving the effectiveness of international environmental law, as many gaps were found in this particular law. Even though an increasing number of countries state that they wish to support the initiative, Russia and the USA are still hostile to the project, and eventually the discussions came to focus on more specific issues, such as the legal form of such an instrument or the means to ensure a good relation between this instrument and the existing sectorial agreements.²³

At the third and last meeting of the working group at the headquarters of the United Nations Environment Programme in Nairobi, from 20 to 22 May 2019, the Global Pact for the Environment suffered a serious setback because, although they had to decide on the suitability of adopting a Pact for the period 2020‑2021, the States eventually adopted disappointing recommendations, choosing a simple political statement in 2022, on the occasion of the 50th anniversary of the Stockholm Conference. Thus, the setback is twofold, meaning that the year 2022 was proposed instead of 2020-2021, as it had been set in the beginning, and with regard to the States’ ambition, they settled for a mere Statement with a vague content, instead of a legally binding international treaty to enshrine the general principles of environmental law.

The recommendations adopted in Nairobi included the recognition of the fact that a more circular global economy, where goods can be reused and kept in circulation for as long as possible, can have a significant contribution to sustainable consumption and production. Others established the need for Member States to transform their economies through sustainable public procurement, and called on countries to support measures to address food waste, and to develop and share best practices with respect to safe and energy-efficient cold chain solutions.

The Ministers also adopted a series of resolutions on marine and microplastic waste, including a commitment to create a multi-stakeholder platform within the United Nations to take immediate action to eliminate long-term waste and microplastics; within the same framework, resolutions were adopted to address the problem of marine debris, examining the entire lifecycle of products and enhancing the efficiency of resources.²⁴

Whereas some are optimistic, considering that “If countries deliver on all that was agreed here and implement the resolutions, we could take a big step towards a new world order where we no longer grow at the expense of nature but instead see people and planet thrive together”²⁵, others believe that the latest meeting is nothing but “the failure of the UN decision‑making process due to the inability to overcome national selfishness for the good of humanity”.²⁶

Although at the end of the working group’s work, the need for a Global Pact for the Environment was confirmed, albeit postponed, the UN General Assembly is waiting for other meetings to be able to adopt a second resolution, in order to start negotiations concerning the content of the Pact. If these negotiations succeed, the Global Pact for the Environment could be adopted in the coming years at an adhoc international conference, and then opened for ratification by the States.

Three months after the outcome of the Nairobi negotiations, on 30 August 2019, the UN General Assembly adopted Resolution 73/333, which welcomes the activity of the ad hoc open‑ended working group, established pursuant to General Assembly resolution 72/277, as well as its report, and endorsesall its recommendations. The UNGA opinion is a positive step forward towards consolidating the international environmental law and providing the institutional steps and essential policies for achieving the Sustainable Development Goals (SDGs).²⁷

UNGA Resolution 73/333 authorises the Secretary-General to continue to use the special voluntary trust fund to support the process of implementing the recommendations. In addition, the special voluntary trust fund can be used to facilitate the participation of representatives from developing countries, in particular least developed countries, landlockeddeveloping countries and small island developing States in any future meeting relatedto the considerations of subsequent works.

The resolution, which was announced by the European Union in a briefing of the UN General Assembly on 9 July 2019, was adopted without a registered vote.

The resolution of the UN General Assembly is considered to start a new phase, by forwarding these recommendations to the UNEA for its consideration, and to prepare, at its fifth session, in February 2021, a political declaration for a high-level meeting of the United Nations, in the context of the commemoration of the creation of the United Nations Environment Programme by the United Nations Conference on the Human Environment, held in Stockholm from 5 to 16 June 1972.

Although the meeting was unsuccessful, on 27 September 2019 the Columbia Center on Sustainable Investment (CCSI), the UN Sustainable Development Solutions Network (SDSN) and the Club desjuristes organised conference on the Global Pact for the Environment, with the support of Iberdrola, at Columbia University²⁸, which will build upon the last two years of diplomatic efforts to promote the Global Pact and discuss opportunities to strengthen international environmental governance. This conference focuses on the ability of a Global Pact for the Environment, which aims to unify international environmental governance and codify the human right to environment in international law, to support the 2030 Agenda for Sustainable Development, including by linking the 2030 Agenda to the international environmental legal system.²⁹

Specifically, the conference analysed the potential connections between the 2030 Agenda for Sustainable Development and the Global Pact for the Environment, addressing the opportunities for mutual consolidation and considering the priority provisions for the negotiators of the Global Pact to include maximum impact. The specialists discussed how a global pact could serve the three general pillars of the Agenda for Sustainable Development, including to promote social inclusion and economic development, in addition to environmental protection.³⁰

3. Conclusions

Based on the right to live in a healthy environment and the duty to take care of the environment, the Global Pact will give citizens the legal means to protect the planet. It will acknowledge the fundamental principles of preventing and fixing the damage caused to the environment and will set forth the necessary instruments to implement such principles (the rights to information and public participation, the right of access to environmental justice).

The Global Pact for the Environment could become the first legally binding international agreement, bringing together and harmonising all environmental rights in a single document. The aim is to provide governments with an essential tool to help them implement the different environmental principles and rules within their jurisdiction.

Faced with the unprecedented deterioration of our environment, the Global Pact for the Environment will be an essential tool, as it will create a space in which the same environmental standards will apply to everyone, regardless of their country, which will facilitate international business processes and observing their social and environmental responsibilities.

Besides, due to its universal nature, it will open the way to recognising environmental rights as “fundamental rights” for everyone.

This pact would provide a text of general applicability that would lead to the coordination of rules and institutions in international environmental law, codifying the principles set forth in the agreements so far, establishing legal rights and responsibilities that can be enforced in national and international courts, filling many of the existing gaps in international environmental governance.

The Pact will promote the harmonisation and clarification of standards for companies, so as to avoid environmental dumping as dangerous for jobs and the planet, as well. In each State, it will lead lawmakers to adopt new laws to protect the environment even more. It will inspire judges to adopt more ambitious legal solutions.

The Global Pact for the Environment is a necessary instrument that has taken too much time to prepare, and we consider that States will keep making efforts, because we have to act now for a better, healthier future, where all the population of the planet has a part to play.

Although this Global Pact for the Environment, at the stage where it is now, that is, a mere political statement thatonly has a symbolic value and not a legally binding one, lacking the coercive force andmandatory rules that a treaty would have, was a total failure, I believe it is still one of the responses to the environmental crisis that is becoming more acute.

A Global Pact for the Environment will greatly extend the rights of those suffering from environmental damage, it will allow and encourage States and the civil society to better hold polluters accountable and to lay the foundation for incorporating environmental concerns into all international governance, as is the case for other human rights.

Therefore, this text could become the backbone of international environmental law and can be an opportunity to renew and modernize international environmental law while serving as a driver for better effectiveness of the existing instruments.

One of the essential questions posed by the draft Global Pact for the Environment, currently under discussion within the framework of the United Nations, is that of its operational usefulness, beyond its symbolic value. Does it bring something new to the environmental question? Is it adequately linked to the news of the current planetary ecological crisis? Does it introduce new features to the range of environmental texts that already exist in international law? Remains to be seen.

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