Abstract
This paper examines the process towards a Global Pact for the Environment (GPE), launched by the UN General Assembly on 10 May 2018, and the extent to which it still could be instrumental in strengthening the normative and governance system of response to the challenges posed by environmental degradation in the context of sustainable development. The paper reviews the origins, evolution and current status of the process for a GPE, noting a setback to the process, which occurred in Nairobi on May 2019. Arguments stressing the value of a normative approach to the governance of the Earth system are weighed against States’ preference for political action to ensure better implementation of existing norms. In its conclusive section, the paper makes the case for an integrative approach of policy and law in a global pact for the environment expressing the State’s firm commitments to protect and restore the integrity of the Earth system.
Keywords
The idea of a global treaty for the environment is not new in the international field where there have been significant contributions from doctrinal and institutional sources, 1 but it arose again quite recently. The current process towards a global pact for the environment started with a French initiative on the run of the success achieved with the adoption of the Paris Agreement on Climate Change in 2015. Throughout the following biennium, a network of legal experts (French with international participation), called the “Group of Experts for the Pact”, 2 worked to prepare the draft of a global treaty on the environment. The final text produced by the Group of Experts for the Pact was adopted on 24 June 2017 at an academic event held in the Great Amphitheatre of Sorbonne University with the presence of President Emmanuel Macron and various international personalities. In September 2017, the promoters of the initiative published a white paper entitled “Towards a Global Pact for the Environment” which included the articulated text of the proposed draft. 3
The project was conceived with three objectives: (i) as an antidote to the fragmentation of the rules of international environmental law which are dispersed in numerous sectoral agreements; (ii) as a remedy against the purely declarative nature of many international instruments for the protection of the environment (i.e., “soft law”); and (iii) as a reinforcement of regulatory and institutional congruence in the field of international environmental law.
The essential purpose of the draft Global Pact for the Environment is to reformulate the fundamental principles of international environmental law in order to give them a more integrated, firm and mandatory content. Among the features of the draft text of the pact are the following: the conventional proclamation of the right of every person to an ecologically sound environment (Article 1) and the duty to care for it (Article 2); the obligation to take the necessary measures for adequate remediation of damage to the environment (Article 7); the obligation to promote environmental education and training (Article 12); the duty to promote environmental research and innovation (Article 13); the recognition of the vital role of non-State actors (Article 14); the obligation to adopt effective environmental laws and ensure their implementation and enforcement (Article 15); the principles of resilience (Article 16) and non-regression (Article 17); the protection of the environment in relation to armed conflicts (Article 19); and the establishment of a mechanism for monitoring implementation of the Pact through a Committee of Independent Experts (Article 21).
At present, the process towards a global pact for the environment has completed its first stage at the United Nations where the discussions held showed that, for the time being at least, States are more inclined to pursue a policy action – that is a declaration directed at the preservation of the integrity of the Earth’s ecosystem than to assume new legal obligations by adopting an international treaty on these issues.
Initial General Assembly Resolution and Report of the Secretary-General
Within the UN, the process towards a global pact for the environment began with a “Global Summit” held on 19 September 2017 in the margin of the 72nd session of the UN General Assembly (UNGA) and chaired by French President Emmanuel Macron, in the presence of the Secretary-General and the President of the UNGA. 4 Participants in the Summit decided to set up a group of Friends of the Pact that was to prepare a draft resolution on the subject for adoption by the General Assembly.
UNGA Resolution
The global pact resolution was formally proposed to the UNGA by France and 71 other co-sponsoring countries on Thursday 10 May 2018. After a very intense debate, the resolution was adopted by 143 votes in favour, 5 against and 7 abstentions. 5 Ultimately, however, Resolution 72/277, entitled “Towards a Global Pact for the Environment” 6 did not address the French draft pact, instead deciding to start the process afresh.
The resolution recognised existing obligations and commitments under international environmental law and reaffirmed all the principles of the Rio Declaration. The text also stressed “the need to address, in a comprehensive and coherent manner, the challenges posed by environmental degradation in the context of sustainable development”. It then requested that the Secretary-General prepare a technical and evidence-based report on possible gaps in international environmental law and environment-related instruments with a view to strengthening their implementation. It also established an ad hoc open-ended working group (AOEWG) – that is a group that is open to participation by all States that are UN Members or members of specialised agencies, as well as accredited NGOs – to consider the Secretary-General’s report and “discuss possible options to address possible gaps in international environmental law and environment-related instruments”. The General Assembly resolution also recognised that the process should not undermine existing relevant legal instruments, frameworks and bodies, and that its costs should be supported by voluntary contributions. As to the outcome of the process, the resolution requested that the working group define, if deemed necessary,
the scope, parameters and feasibility of an international instrument, with a view to making recommendations to the General Assembly, which could include the convening of an intergovernmental conference to adopt an international instrument.
Technical Report
In November 2018, the UN Secretary-General released the technical report on “gaps in international and environment-related instruments with a view to strengthening its implementation”, which had been requested in Resolution 72/277. 7 That report focused on the examination of the regulatory and implementation gaps in international environmental law, although its analysis went beyond these considerations. Its first finding is that there is no single overarching normative framework in international environmental law that sets out the rules and principles that may be considered to be of general application. The report also affirmed that the existing system of international environmental law is piecemeal and reactive, and is characterised by fragmentation and a general lack of coherence and synergy among a large body of sectoral regulatory frameworks. After a thorough analysis of the legal and institutional practices, the Secretary-General’s report summarised the main gaps and deficiencies resulting from the fragmented and reactive nature of the international environmental law system, recognising that the principles of international environmental law are uncertain, noting that they are often affected by lack of international consensus and lack of clarity. Thus, both in terms of their content and their status, this uncertainty is an obstacle to implementation. Second, it noted that the fragmentation and a general lack of coherence and synergy among a large body of sectoral regulatory frameworks lead to a deficit in coordination at the law-making and implementation levels and a need for better policy coherence, mutual supportiveness and synergies in implementation. Third, it discussed the articulation between multilateral environmental agreements (MEAs) and environment-related instruments, and notes that this remains problematic. Fourth, it identified the structure of international environmental governance as an indicator of coherence and coordination challenges. Leading into its conclusion, it combined the previous points, to state that the implementation of international environmental law is challenging at both the national and international levels:
The above review and analysis of the state of international environmental law and environment-related instruments reveals gaps and deficiencies at multiple levels. There are significant gaps and deficiencies with respect to the applicable principles of environmental law; the normative and institutional content of the sectoral regulatory regimes, as well as their articulation with environment-related regimes; the governance structure of international environmental law; and the effective implementation of, compliance with and enforcement of international environmental law. 8
The report considered a number of concrete legal and policy measures that might help to fill the gaps identified in its chapters, stating among its general conclusions, “A comprehensive and unifying international instrument that gathers all the principles of environmental law could provide for better harmonization, predictability and certainty”. 9
The Ad Hoc Open-Ended Working Group
In New York from 5–7 September 2018, the AOEWG started its process with several organisational meetings under the guidance of the two Co-Chairs: Amal Mudallali (Lebanon) and Francisco Duarte Lopes (Portugal). At that time, the Group decided that it would hold three substantive sessions in 2019 and adopted the provisional agenda for the first one. 10 The following sections briefly describe the three substantive sessions.
First Substantive Session
The first substantive session of the AOEWG was held in Nairobi from 14–18 January 2019. Its work focused on the consideration of the Secretary-General’s report on gaps in international environmental law and their implications. At the meeting there was general agreement on the need for an open, transparent and inclusive discussion, ensuring that the process would not weaken existing instruments, bodies and procedures. Voices were also heard stressing the importance of the work being carried out on the basis of consensus in order to present pragmatic and realistic results in its recommendations to the UNGA. With regard to substantive issues, delegations expressed different views on the weight to be granted to the Secretary-General’s report, on the significance and extent of gaps and the fragmentation of international environmental law, on the opportunity to review its guiding principles and on the possible added value of a new instrument (with or without legal force). On institutional issues, the US delegation upheld the specialised approach of MEAs and the need to respect their autonomy. Opposing views were aired on coordinating institutions, with some delegations highlighting the need to strengthen the coordinating role of existing international governance structures, such as the UN Environment Programme (UNEP) and its UN Environment Assembly (UNEA), and other delegations opposing. The latter views were also expressed in the discussions on the establishment of an international environmental court and the question of liability and reparation for cross-border environmental damage. With regard to the shortfalls in the effective implementation of international environmental norms, a number of delegations stated that it was a responsibility of each State at the national level, the improvement of which required greater efforts in financial matters, capacity building and technology transfer. 11
Second Substantive Session
The second substantive session of the AOEWG was held in Nairobi, 18–20 March 2019. Its central topic was the discussion of “possible options for addressing possible gaps in international environmental law and environment-related instruments”. In order to structure and guide the discussions of the meeting, the Co-Chairs circulated a document focusing on possible gaps and options in four areas: 1) principles of international environmental law; 2) its governance structure; 3) the implementation of its rules and principles; and 4) the specific regulatory regimes of “relevant environment-related instruments” 12 (MEAs and related instruments), considered with a view to strengthening their implementation. 13
The delegations most reluctant about the enterprise (such as the US and Egypt) adopted a delaying strategy, claiming that the group should identify the specific gaps in international environmental law before possible response options could be addressed. Brazil opined that diversification of existing regimes was a “bonus” and not a problem. Russia affirmed that the fundamental task under consideration should be the implementation of existing legal instruments, ensuring funding by all States.
Conversely, however, a large number of delegations, including the EU, were receptive to the idea of developing an instrument to improve the implementation of international environmental law and to strengthen environmental governance instruments and cooperation between existing MEAs. Many delegations stressed the need to achieve pragmatic results with added value, avoiding duplication of existing processes and initiatives, without undermining or weakening them, and of trying to reach consensus.
With regard to the specific thematic elements contained in the document prepared by the Co-Chairs, the most contentious points were those relating to the concept and existence of gaps in international environmental law, the need to codify its guiding principles and the opportunity to prepare a new international instrument, whether binding or not. Delegations showed greater harmony when considering issues relating to international institutional governance structures; increased coordination and cooperation between MEAs and other specific regulatory regimes; and strengthening the means of implementation at the national level. At the end of the meeting it could be thought that the bottom line was relatively positive although the road to a global pact for the environment was far from clear. 14
Third Substantive Session
The third and final substantive session of the AOEWG was held in Nairobi 20–22 May 2019. A month earlier, on 25 April 2019, the Co-Chairs circulated a non-paper containing the draft proposals for recommendations to the 73rd session of the UNGA, in order to facilitate discussions. 15 This Co-Chairs’ draft was accepted as a starting point and guide for the discussions. It combined rather moderate recommendations in terms of their objectives (Section I) and substantive elements (Section II), with more daring proposals regarding the continuity of the process (Section III).
As briefly examined below, the most notable areas of controversy related to three elements: the “principles” of international environmental law, the need to fill the gaps and deficiencies in international environmental law identified in the Secretary-General’s report; and matters related to international institutional governance. Ultimately, the most significant divergence involved the legal nature of the pact.
General and Non-Controversial Provisions
The discussion concerning the objectives listed in Section I was relatively peaceful, with general acceptance of the following objectives of the process: to “reinforce the protection of the environment for present and future generations”, to uphold the respective obligations and commitments of States, to contribute to the strengthening of its implementation, to support the full implementation of the 2030 Agenda for Sustainable Development and the outcome of the UN Rio+20 Conference, and to ensure that these activities do not undermine existing relevant legal instruments, frameworks and bodies.
As proposed by the Co-Chairs, the objectives approved by the AOEWG were limited to the maintenance of existing commitments and obligations, and the strengthening of their implementation. They thus excluded discussions of the further development of international environmental law in a spirit of ambition and progress. Among such excluded proposals, Costa Rica suggested the need to add new elements to the inventory of objectives, such as the recognition of a human right to the environment; Guyana called for the improvement of international environmental governance; Micronesia sought to include a mention of the need to respond to the challenges in international environmental law; and the EU sought to include a mention of the desirability of swift global action in areas not yet sufficiently covered.
There was also general agreement on most of the substantive recommendations enumerated in Section II, although a few were controversial. Many delegations stressed the need to increase the means of implementation of the pact’s provisions, calling for financial assistance, technical assistance and technology transfer. 16 The majority of delegations also agreed on the need to ensure coherence among the MEAs and scientific institutions on cross-cutting issues. They also recognised the need to increase cooperation and coordination between the scientific community and the various convention governing bodies and secretariats, each expressing slightly differing methods of doing so. There was also broad consensus on the need to simplify information and monitoring procedures, including by favouring joint reporting systems in related MEAs. The debate on strengthening implementing measures at the national level through appropriate legislative, administrative and judicial action and the necessary international cooperation was also relatively peaceful. Repeated reference was made to the role that the Programme for the Development and Periodic Review of Environmental Law (the UNEP-hosted Montevideo Programme) could play. They also approved insertions requested by the EU regarding the need to integrate environmental protection into sectoral policies and programmes, and the effective participation of all stakeholders in the implementation of international law environmental and regulatory instruments.
Controversy over Principles, Gaps and Institutional Arrangements
The EU, supported by several delegations, stressed the importance of recognising the principles of international environmental law and called for continuing dialogue. This was opposed by the US and other delegations, so the issue did not make any further progress.
Recalling the mandate of the General Assembly resolution, several delegations called for concrete action to fill gaps in international environmental law. Uganda noted that gaps and deficiencies in international environmental law had not been addressed, while Guyana, supported by Norway, proposed that a regulatory framework would be developed to fill gaps in the law in accordance with the mandate of the working group. Ukraine noted the critical gaps in the field of the protection of the environment in armed conflicts. Turkey raised the need for control of marine pollution produced by detritus and plastics. The EU noted that other global environmental problems had previously been identified by the UNEA. 17 After several rounds of discussions, none of these proposals was included.
On institutional matters, the debate was intense. Some delegations, led by Kenya and the Russian Federation, called for UNEP to be assigned the primary role in environmental issues. Others, led by the US, noted that UNEP’s authority is shared with other institutions of the UN system. The issue indirectly affected the determination of whether the on-going process for a global pact for the environment should continue at the UN compound in Nairobi (home of UNEP) or at UN Headquarters in New York. At the end of the discussions, the Co-Chairs endorsed UNEP’s position and the role of the UNEA as the primary global authorities on the matter as the majority view.
“Hard” Law or “Soft” Declaration?
The most contentious discussions were those focused on Section III of the Co-Chairs’ draft – continuity of the process and the nature of the international instrument to be adopted. After long and difficult discussions, it was impossible to reach consensus, so the Co-Chairs launched an informal working group, facilitated by Solveig Crofton (Norway) and Elizabeth Taylor (Colombia). The informal working group considered different proposals submitted by Morocco, Ecuador, Colombia, the EU, Switzerland, the US and Russia. In the late hours, following very difficult discussions, an agreement was reached that calls for the preparation of a political declaration on a global pact for the environment, thus excluding the adoption of a legally binding international instrument. The text accepts the continuity of the process, the maintenance of discussions on principles with a view to strengthening the implementation of international environmental law, and the preparation through the UNEA of a political declaration to be adopted by a high-level meeting on the 50th anniversary of the Rio declaration. 18
UNGA Resolution on the AOEWG’s Recommendation
On 30 August 2019, the General Assembly adopted Resolution 73/333, on the follow-up to the report of the AOEWG, which in its operative paragraphs endorses all the recommendations of the working group: 19
The Transition from a Framework Convention to a Political Declaration
The global pact for the environment was originally presented as an attempt to provide international environmental law with an overarching treaty that could act as an umbrella for all existing multilateral conventions and environment-related instruments. This proposal has solid conceptual foundations but the discussions held so far indicate that States are more inclined to give the global pact for the environment the form of a political declaration.
The remainder of this article focused on this final decision. It considered the conceptual foundations for a global pact for the environment, and the reasons underlying the States’ preference for a political declaration.
Conceptual Foundations for a Framework Convention
The conceptual foundations for a global pact for the environment are based on different considerations having empirical, political, ethical and legal dimensions. 20
The main element justifying the need for such a global pact is the verification that humanity is facing a growing environmental crisis of tremendous magnitude which prevents States and social forces from achieving sustainable development and puts its future at risk. With the industrial and technological revolution, we have entered the Anthropocene, a new geological era in which humans are recognised as a major driver of global environmental change. 21 Scientific evidence shows that currently the rate of anthropogenic global impact in the environment is accelerating and possibly going beyond the biophysical thresholds of “planetary boundaries”. 22 Under the current prevailing conditions, the relationship between man and nature shows a frightening picture of continual and increasing degradation of world resources and ecological processes on Earth. The most vital elements of the biosphere, such as air, oceans, freshwater, lands, forests, biodiversity and habitats are suffering from significant deterioration and some of them are getting close to reaching their critical limits. Several islands and coastal territories of the planet are bound to totally or partially disappear as a result of sea-level rise due to the effects of climate change. Irrespective of occasional denials, there is sufficient scientific evidence of the existence of a multidimensional ecological crisis putting at risk the prospects for social sustainability and threatening the survival of mankind on Earth. In the words of former UNEP Executive Director Klaus Töpfer:
[T]oday’s world is facing an unprecedented environmental crisis ... The degradation of the Earth’s environment increasingly threatens the natural resource base and processes upon which all life on Earth depends... The urgency of balancing development with the Earth’s life support systems is being finally recognized and understood. Now it is time to act upon this understanding. 23
In 2012, the fifth UNEP Global Environment Outlook report confirmed that the pace of degradation of the Earth’s environment has increased since 2006. 24 Other authorised international scientific bodies are coming to the same empirical conclusions. At the UNGA meeting that adopted the report of the AOEWG, a Norwegian delegate recalled,
[R]ecent reports from the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services and the Intergovernmental Panel on Climate Change, as well as the ... UNEP ... Global Environment Outlook 6, all share one overarching finding: in spite of everything we are doing, our efforts are not yet sufficient to curb the overall trajectory in terms of climate change, biodiversity loss and plastic pollution in our oceans, among other things. 25 ∥
Faced with such an unprecedented global ecological crisis, the first and foremost collective responsibility of all States should be to improve environmental governance during this period in which the Earth’s ecosystems are under transformative stress and to protect Earth’s ecological integrity for present and future generations. States are also ethically bound to recognise the rights of Nature, to contribute to environmental justice and to respond to social demands across the world. Particularly vulnerable States call for more committed international action to preserve the world’s ecological conditions and avoid environmental catastrophes which put its survival at risk. A growing number of people, especially the younger generation, ask the governments of the world to raise the political importance of the environmental agenda. Those objectives are fully in line with the sustainable development goals and targets proclaimed in 2015 by the UNGA. 26
To curb the current environmental crisis, States should not only adopt urgent policy actions but also work together to strengthen international environmental law and provide for better institutional and operational governance instruments. In this context, the absence of an overarching treaty establishing “constitutional parameters” of the international regime for the protection of the environment is perceived to be a major dysfunctional feature of the system. 27 The Secretary-General’s 2018 report (mentioned above) identified this fact as the first gap in international environmental law and environment-related instruments: “First, there is no single overarching normative framework that sets out what might be characterized as the rules and principles of general application in international environmental law. ... ”. 28
The existing international legal regime for the protection of the environment is formed by a myriad of sectoral autonomous agreements and other environment-related instruments. It lacks an overarching normative instrument which may help unify the current sectoral approach and fill the gaps in the rules laid out in treaties. As the Secretary-General’s report clearlystated, the lack of an overarching instrument and the fragmentation of the system of international environmental law have resulted in gaps and deficiencies at the law-making and implementation levels, and reveal important coherence and coordination challenges at both the international and national levels. 29
International practice shows that the amalgamation of sectoral MEAs and other environment-related instruments generates dramatic examples of problem shifting (instead of problem solving) with possible fatal consequences for the global environment. 30 As rightly concluded by two eminent specialists, in effect, the existence of multiple parallel, overlapping MEAs might not lead to a higher global protection standard and, as a result, the Earth’s environmental conditions have continued to deteriorate despite the accumulating body of environmental law. 31
As a consequence, these experts believe that the process towards a global pact for the environment launched by General Assembly Resolution 72/277 should deliver a normative instrument able to fill the existing constitutional gap and improve the functioning of the international legal system. In their view, the global pact for the environment has the potential to contribute to improving structural coherence in the international response regime for the preservation of the Earth system while promoting social-ecological goals that respect planetary boundaries in the Anthropocene. With that in mind, they have called for the recognition of a clearly agreed unifying goal, whose exact form and nature is to be decided, setting the fundamental grundnorm for the international environmental legal system: namely, “protecting and restoring the integrity of the Earth system”. 32 Such a superior norm (or set of norms and principles) should be embodied in the agreed global pact for the environment in order to give all international regimes and organisations a shared purpose to which their specific objectives must contribute.
Other environmental experts promote the adoption of a legally binding instrument in the form of a global convention with a light institutional structure to support its operation – an instrument that will also provide an “umbrella” under which to integrate a wider number of MEAs. As summarised, the concrete arguments which support the need for an instrument having a legally binding character are the following: first, general principles of international environmental law are usually embodied in non-binding texts, a feature that has prevented some principles from deploying their full effects; second, there are a number of gaps and deficiencies which leave important questions open or unsettled; third, little attention is paid to the non-linear effects of the said gaps and deficiencies; fourth, there are conflicts between legal instruments eventually conducing to problem shifting instead of problem solving; fifth, there remain strong divergences in the interpretation and application of basic systemic principles; sixth, guidance provided by international environmental law to national legislators and courts is neither clear nor strong enough; and finally, at the international level there is also a lack of strong institutional bodies with normative, administrative or judicial powers for the protection of the global environment. 33
All NGOs representing civil society participating as observers in the process towards a global pact for the environment supported the adoption of a legally binding international instrument to overcome the world ecological crisis.
The Preference for the Adoption of a Political Declaration
The on-going process towards a global pact for the environment reflects that a majority of States prefer to develop a political declaration on the need to improve implementation of existing legal instruments rather than starting proceedings for the preparation of a new framework treaty.
In this discussion, the world’s great powers were followed by a significant number of other States. Their starting point was that the global pact for the environment should be limited to matters concerning implementation of existing obligations and commitments under international environmental law. In their view, such aspects include improving cooperation and coordination between the governing bodies and the secretariats of the various conventions and the scientific community, and strengthening international institutional bodies such as UNEP and UNEA. Beyond that, they do not have the political will to address issues concerning the development of international environmental law with a view to overcoming the gaps and dysfunctions identified in the Secretary-General’s report. The US and Russia even proposed closing the global pact process, recommending that “no further action be taken”. 34
Other countries, such as Brazil, Argentina, Turkey, Egypt, Nicaragua, Japan and others, also voiced their perspectives. Argentina, for example, maintained that there are not really any gaps in the international system of norms concerning the protection of the environment. The US opposed the characterisation of the current law as fragmented, stressing that it has been the will of States to construe this body of law in such a way. Brazil added that the “piecemeal approach” should be regarded as an asset and not as a deficiency of the international legal system. 35
Opponents rejected the elaboration of new rules of international environmental law in general and the need to prepare a new global overarching treaty in particular. In their view, the paramount objective of the process towards a global pact for the environment should be to preserve the regulatory and institutional autonomy of existing MEAs and not to add any new super-structural normative instrument. This diplomatic objective is particularly important for the world’s great powers that feel at ease under the existing sectoral amalgamations of autonomous legal regimes thus rejecting the view that they should assume additional international environmental obligations and commitments. Egypt and Saudi Arabia opposed the possibility of further discussions on the principles of international environmental law, stating that the issue should be left to the International Law Commission. 36
Among those favouring a new instrument, the EU, supported by Micronesia, Bolivia and Mexico, defended the need for discussions to include the role of environmental principles as the main element of the process towards a global pact for the environment. The text finally agreed by the AOEWG employs a nuanced wording that recognises the role of discussions on the principles of international environmental law in order to improve its implementation and takes note of the on-going work within the International Law Commission. Although not entirely explicit, the text accepts the possible continuation of work on principles at the next stages of the process towards a global pact for the environment.
The majority’s rejection of direct law-making has effectively eliminated consideration of several important legal, institutional and implementation issues. Among these are the following: issues of international responsibility and liability for environmental damage, particularly with respect to the global commons; the proclamation of a human right to the environment; and the recognition of emerging principles such as non-regression.
The continuation of the process as development of a political declaration has excluded other relevant institutional issues as well. These include the need for a new United Nations Environment Organization, the viability of an international environmental court and the possible establishment of a compliance mechanism to provide overall control over the implementation of existing sectoral MEAs.
As for the nature of the international instrument to be adopted, different opinions were expressed: some States (the US and Russia) rejected any type of legal instrument, binding or non-binding. Others (including Mexico, South Africa and Kenya) stated a preference for a non-binding instrument, with the EU also advocating that the issue be left open until a later stage in the process. The final arrangement expressed in the AOEWG report could be viewed as a setback for a treaty as it clearly calls for a political declaration to be adopted at a high-level meeting in 2022. Paragraph 55(b) of the report makes a clear recommendation to the General Assembly:
Forward these recommendations to the United Nations Environment Assembly for its consideration, and to prepare, at its fifth session, in February 2021, a political declaration for a United Nations high-level meeting, subject to voluntary funding, 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, with a view to strengthening the implementation of international environmental law and international environmental governance, in line with paragraph 88 of the outcome document of the United Nations Conference on Sustainable Development entitled, “The future we want”.
To date, the outcome of the UN’s discussion of the global pact was bittersweet: the process will go on, principles will be discussed but the final outcome will be a political declaration and not a global treaty.
Conclusion
The current evolution of the process towards a global pact on the environment shows a fundamental contradiction between the international actors supporting the adoption of a normative binding instrument and those wanting only a political declaration. Since both sides equally affirm that their aim is to reinforce the protection of the environment for present and future generations, their respective positions ultimately depend on the weight that they attribute to the respective ability of law or policy to achieve substantive progress in social life.
Regardless of abstract discussions on the respective roles of policy and law in international relations, there are important societal functions that only the law can fulfil. In order to perform these functions, States traditionally resort to treaties. 37 A global pact for the environment could provide a legal overarching framework to the existing sectoral conventions and environment-related instruments. It could be grounded in clear empirical evidence that there has been a persisting trend towards deterioration of the biophysical conditions of the Earth, notwithstanding the exponential growth in the number and variety of norms of international environmental law. Clearly, to remedy this critical environmental challenge, both political action and legal instruments are needed.
Law can be instrumental in efforts to achieve political and social goals. Thus, a global pact for the environment in the form of a binding treaty enshrining all the principles of international environmental law could be an effective contribution to ecological preservation in the context of sustainable development. As noted above, however, the course of action preferred by a majority of States was to limit multilateral efforts to purely political action. This should lead us to ask ourselves about the reasons underlying such an attitude. Certainly, some of the arguments put forward by the States objecting to the proposal to negotiate another global treaty on the environment are well founded in terms of policy and law. However, in the author’s view, the overwhelming reason explaining the blockage of a global instrument with legal force is that the world’s big powers, followed by a significant number of other States, do not want to accept new positive legal obligations, especially in the environmental field. The successful diplomatic action conducted by the US and Russia against a global treaty on the environment has gained the support of many States mainly in America and Asia. The Group of 77 plus China was not unified on this question, and the EU’s interventions were tepid. Most of the African Group backed the global treaty objective.
Why has the process towards a global pact for the environment decayed from a framework convention to a mere political declaration? Several procedural elements were identified as contributors to that preference. One of these was that the French “zero draft” was withdrawn, and so would not be a starting point for the working group established under the 2019 UNGA resolution. Another contributory element was the decision to limit early AOEWG discussions to implementation issues, thus excluding the consideration of law-making progress.
A third procedural contributor to the ultimate retreat from a global treaty objective was the tacit acceptance of the rule of consensus for the adoption of decisions. This element is of paramount importance since it acted as a de facto veto power, allowing States with sufficient diplomatic strength to block any initiative that might allow the negotiations to move beyond the existing legal status quo.
A fourth decisive element was lack of robust leadership. Neither the French delegation nor the general EU delegation took a strong position supporting this EU Member State’s initiative. In this connection, the EU’s collective position diluted the French support, which was not universally supported within the EU representation.
For the follow-up process towards a global pact for the environment to adequately respond to the challenges resulting from the on-going environmental sustainability crisis, it will be important to re-establish the integration between policy and law, so that the high-level political declaration to be adopted in 2022 fully incorporates clear commitments by States to do all that they can to protect and preserve the common environment for present and future generations.
Footnotes
In 1989, Professor Alexandre Kiss advocated the elaboration of a general convention proclaiming the obligation to protect and preserve the whole of the biosphere, setting out the fundamental principles derived from this obligation and including the provisions necessary to clarify its implementation, as with the United Nations Covenants on human rights (Kiss, A. 1989. “Nouvelles tendances en droit international de l’environnement”. German Yearbook of International Law 32: 241–263, at 258). In 1978, the World Commission on Environment and Development (WCED) Experts Group on Environmental Law developed an inventory of the principles of international environmental law, which was included in the Brundtland report Our Common Future (Report of the World Commission on Environment and Development: Our Common Future, Annex 1). In 1995, the International Union for Conservation of Nature (IUCN), in cooperation with the International Council for Environmental Law (ICEL), presented the text of the Draft Covenant on Environment and Development, as a model for a comprehensive conventional instrument on principles and rules related to environment and development (available at https://portals.iucn.org). In 2017, the Centre International de Droit Comparé de l’Environnement (CIDCE), an institution belonging to the University of Limoges, presented a Draft of the International Covenant on the Human Right to the Environment as a possible third pact additional to the 1966 International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights (text available at 
).
The Group of Experts for the Pact is an international network of one hundred experts from over 40 nationalities mobilised by the Committee on the Environment of the “Club des juristes” (a French legal think tank).
According to the information published at UNEP’s website: “The Summit was attended by 40 Heads of States or Government and many Ministers and representatives from UN institutions and civil society. In total, around 600 people attended the Summit. Seventeen countries from the 5 continents, including 10 represented at the HoS level, made an intervention expressing support for the launch of negotiations on a Global Pact for the environment. Speakers included France, Estonia, Croatia, Gabon, Bolivia, Guinea for the African Union, Senegal, Fidji, Norway, China, Costa Rica, India, Mexico, Bangladesh, Morocco, Niger and the United Arab Emirates. The UNSG and the President of the UNGA also underlined the relevance of launching negotiations on a Global Pact for the Environment. Erik Solheim, the Executive director of UNEP, gave his strong support to the initiative and offered the secretariat services of UNEP to support the negotiations”. Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/22190/Global%20Pact%20for%20the%20Environment%20-%20Concept%20note%20%2813%20November%29.pdf?sequence=3&isAllowed=y.
The five countries that voted against the resolution were the US, the Russian Federation, the Philippines, Syria and Turkey. The abstentions were Saudi Arabia, Belarus, Iran, Malaysia, Nicaragua, Nigeria and Tajikistan. See UN Doc symbol A/72/PV.88.
UNGA Resolution 72/277, “Towards a Global Pact for the Environment”. UN Doc symbol A/RES/72/277, adopted on 10 May 2018.
Report of the Secretary-General. 30 November 2018. “Gaps in international environmental law and environment-related instruments: towards a global pact for the environment”. UN Doc symbol A/73/419.
Ibid., para. 100.
Ibid., para. 102.
AOEWG. 2018. “Report of the ad hoc open-ended working group established pursuant to General Assembly resolution 72/277 of 10 May 2018 entitled ‘Towards a Global Pact for the Environment’. UN Doc symbol A/AC.289.2. Annex.
AOEWG. 2019. [Transcript] “Oral summary by the Co-Chairs”. Available at http://wedocs.unep.org/bitstream/handle/20.500.11822/27261/Oral%20summary.FINAL.pdf?sequence=124&isAllowed=y. See also Doran, P., Bullon-Cassis, L. and Jones, N. 2019. “Summary of the First Substantive Session of the Ad Hoc Open Ended Working Group towards a Global Pact for the Environment”. Earth Negotiations Bulletin 35(1). Online at .
The report of the Secretary-General identified as relevant environment-related instruments those concerning trade, investments, intellectual property and human rights. Supra, note 7, at 30–32.
“Elements provided by the Co-Chairs to structure and guide the discussions of the second substantive session”. Annexed to the Co-Chairs’ Letter of 28 February 2019, which was itself annexed to the transmittal letter by the President of the GA dated 1 March 2019. Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/27614/Pact_trasmittal.pdf?sequence=1&isAllowed=y.
See Co-Chairs’ oral summary of discussions of the second substantive session of the AOEWG, annexed to the transmittal letter of the President of the General Assembly of 27 March 2019. Available at https://wedocs.unep.org/handle/20.500.11822/27870. See also, Doran, P., Bullon-Cassis, L. and Jones, N. 2019. “Summary of the Second Substantive Session of the A d Hoc Open Ended Working Group towards a Global Pact for the Environment: 18–20 March 2019”. Earth Negotiations Bulletin 35(2). Available at .
See letter transmitted by the President of the General Assembly dated 25 April 2019 including the Co-Chairs’ non-paper on draft elements of recommendations to the seventy-third session of the General Assembly. The non-paper of the Co-Chairs was based on the discussions held at the first and second substantive sessions of the working group, as well as on the proposals submitted by delegations in the preparatory process for their third meeting. The Co-Chairs’ non-paper contained three separate sections relating respectively to the objectives (Section I), substantive content (Section II) and the continuation of the pact negotiation process (Section III). The Co-Chairs were available for consultations by interested delegations on 19 and 20 May at UNON headquarters.
A number of delegations, such as Brazil, Argentina, Ecuador, India and Egypt, strongly demanded that this point be given priority, recognising the need to increase and accelerate the provision of additional means of implementation. The US, supported by some delegations, responded that each State has responsibility for its own development. The text finally agreed recognises the importance of greater ambition in the provision and mobilisation of all kinds of means of implementation, consistent with the Addis Ababa Agenda of Action and the 2030 Agenda for Sustainable Development.
Mexico, Morocco, Norway, Chile and Turkey supported the EU here, in the face of opposition from the US and Saudi Arabia.
See A/AC.289/6/Rev.1, Report of the ad hoc open-ended working group established pursuant to General Assembly resolution 72/277. See also Doran, P., Davenport, D. and Wood, P. 2019. “Summary of the Third Substantive Session of the A d Hoc Open Ended Working Group towards a Global Pact for the Environment: 20–22 May 2019”. Earth Negotiations Bulletin 35(3). Available at .
A/RES/73/333, “Follow-up to the report of the ad hoc open-ended working group established pursuant to General Assembly resolution 72/277”, adopted on 30 August 2019.
See Aguila, Y. and Viñuales, J.E. (Eds) 2019. A Global Pact for the Environment - Legal Foundations. C-EENRG Report 2019-1. Cambridge: Cambridge Centre for Environment, Energy and Natural Resource Governance.
The Anthropocene describes the current situation in which almost all biogeochemical systems of the planet are influenced in one way or another by human activities. The concept of the Anthropocene was put forward by Paul Crutzen (Nobel prize in chemistry for his work on atmospheric ozone) who linked it to the global environmental effects of economic development and increased human population. See Crutzen, P.J. and Stoermer, F.F. 2000. “The ‘Anthropocene”’. Global Change Newsletter 41 : 17–18; and Crutzen, P.J. 2002. “Geology of Mankind”. Nature 415(6867): 23.
The concept of planetary boundaries has been summarised as follows: “A group of leading Earth system and environmental scientists have recently identified nine planetary biophysical subsystems or processes that determine the self-regulating capacity of the Earth system, namely: climate change, biodiversity loss, interference with the nitrogen and phosphorus cycles, stratospheric ozone depletion, ocean acidification, global freshwater use, changes in land use, chemical pollution, and atmospheric aerosol loading. The scientists argued that each subsystem or process has a certain ‘boundary’ (a threshold or tipping point) which, if crossed, may trigger non-linear changes in the functioning of the Earth system, thereby challenging social-ecological resilience at regional to global scales. Collectively, therefore, these ‘planetary boundaries’ define the safe operating space for humanity with respect to the Earth system”. Kim, R.E. and Bosselmann, K. 2013. “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements”. Transnational Environmental Law 2(2): 285–309.
A/73/PV.103, at 3.
A/RES/70/1, Transforming our World: the 2030 Agenda for Sustainable Development, adopted on 25 September 2015. Paragraph 33 states: “We (the Heads of State and government and High Representatives) recognize that social and economic development depends on the sustainable management of our planet’s natural resources. We are therefore determined to conserve and sustainably use oceans and seas, freshwater resources, as well as forests, mountains and drylands and to protect biodiversity, ecosystems and wildlife. We are also determined to promote sustainable tourism, to tackle water scarcity and water pollution, to strengthen cooperation on desertification, dust storms, land degradation and drought and to promote resiliency and disaster risk reduction”.
See: Klabbers, J., Peters, A. and Ulfstein, G. 2009. The Constitutionalization of International Law. Oxford: Oxford University Press; Hey, E. 2003. Teaching International Law: State-consent as Consent to a Process of Normative Development and Ensuing Problems, at 7. The Hague: Kluwer; Boisson de Chazurnes, L. 2007. “La protection de l’environnement global et les visages de l’action normative internationale”, at 46. In: Pour un droit commun de l’environnement. Mélanges en l’honneur de Michel Prieur. Paris: Pedone; and Bodansky, D. 2009. “Is There an International Environmental Constitution?” Indiana Journal of Global Legal Studies 16(2): 565–584.
Supra, note 7, first Summary finding.
Ibid., second Summary finding.
Among the most conspicuous examples of problem shifting identified so far are: replacing gasoline with corn ethanol which may shift the net environmental impacts towards increased eutrophication and greater water scarcity; afforestation and reforestation projects that are often partially driven by perverse incentives that promote the conversion of natural forest into monoculture tree plantations; ocean fertilisation and other forms of marine geo-engineering that could produce greater acidification of sea waters and unexpected impacts on marine ecosystems and biodiversity.
See the references given by Kim and Bosselmann, supra, note 22, at 302.
Ibid., at 287, 303, 309.
Aguila, Y. and Viñuales, J.E. 2019. “A Global Pact for the Environment: Conceptual Foundations”. RECIEL 28 : 1–10, at 9. The authors explain that the fundamental choices relating to content and design of the proposed convention are:
(i) the conciseness of the instrument; (ii) a formulation emphasizing its enduring character; (iii) its adaptability to different country contexts; (iv) a balance between rights and duties; (v) a balance between well-established principles and novel ones; (vi) a balance between the normative and the institutional dimension. Ibid., at 5–7.
See the U.S. Submission to the Co-Chairs of the AOEWG of April 12, 2019. Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/27980/US_proposal.pdf?sequence=1&isAllowed=y.
The balkanised structure of international environmental law is the result of the historical conditions under which this system of norms has been established and many original ways to overcome its structural deficiencies have been found. Various international law scholars have stressed the fertility, innovation and dynamism of international environmental law and its influence in other sectors of international law. See Dupuy, P.M. 1997. “Où en est le droit de l’environnement à la fin du siècle?” RGDIP 4 : 873–901; and Gutiérrez Espada, C. 1998. “La contribución del Derecho internacional del medio ambiente al desarrollo del Derecho internacional contemporáneo”. Anuario español de derecho internacional 14 : 113–200. However, today it is generally recognised that efforts made so far are not enough to remedy the gaps and deficiencies of international environmental law and that additional efforts are needed to reinforce the protection of the environment for present and future generations.
Actually, the topic “general principles of law”, introduced in the conceptual foundations for a global pact for the environment’s work programme at the end of 2018, addresses a quite different problem from that of the principles of international environmental law. See, as evidence, the first report on the matter submitted by the Commission’s special rapporteur Marcelo Vázquez-Bermúdez in April 2019 (A/CN.4/732).
See Onuma, Y. 2003. “International Law in and with International Politics: The Functions of International Law in International Society”. European Journal of International Law 14(1): 105–139, spec. 124–125.