Towards a Global Pact for the Environment – Civil society inputs with regard to legal considerations raised at the First Substantive Session
Towards a Global Pact for the Environment – Civil society inputs with regard to legal considerations raised at the First Substantive Session of the Ad Hoc Open-ended Working Group established by UN General Assembly Resolution 72/277 – Nairobi, January 14-18, 2019
At the First Substantive session of the Working Group (“Working Group”), certain member state delegations voiced legal considerations with regard to gaps in International Environmental Law (“IEL”), as well as to the underlying proposal of a Global Pact for the Environment (“Global Pact”). Civil society wishes to contribute its legal expertise to the process and help provide answers to these questions.
What is a gap in IEL ?
Some delegations pointed out that, before delving into the task of assessing and addressing gaps, a common understanding on the definition of a gap is in order. In common and legal language alike, a gap is a hiatus, a void. Although there might be differences in how legal traditions handle the existence of gaps, the Working Group has a mandate to analyze gaps from an international law standpoint. In this context, gaps in IEL can be found either within regimes, or – more importantly for the purposes of this discussion -, across regimes, or when there is no regulation at all.
The most important gap in IEL that a Global Pact could address is the absence of an overarching single framework that globally recognizes a human right to a healthy environment. Such recognition is an extremely important step to overcome the asymmetries currently found in different treaties and domestic laws dealing with protection of the environment, as it has the potential to amalgamate different understandings and serve as a fundamental theoretical basis for the development of IEL.
Are gaps a prerequisite for a Global Pact ?
As plenary discussions on the Report of the Secretary-General A/73/419 (“SG Report”) progressed during the First Substantive Session, a reflection was very much in order: are we asking the right question? The SG Report was very successful in delineating the problem as mandated by Resolution 72/277, but the crux of the matter is that the need for a Global Pact does not hinge on the existence of gaps in IEL. Although significant gaps do exist, assuming that a Global Pact depends on their assessment in order to come to fruition is a non-sequitur of sorts: the continued advancement of IEL has been, and should continue to be, the result of the permanent commitment of international society to the matter. The argument posed by some delegations in the sense that some gaps could be intentional, as the result of negotiated compromise, is therefore a moot point.
Does the existence of gaps amount to systemic weaknesses in IEL ?
Some delegations have voiced fears that the mere acknowledgment of the existence of gaps in IEL could be dangerous, as it would encourage actors to go rogue and justify their acts on an alleged legal void.
International law does not harbor such a scenario. There is a wide array of sources of international law, and of IEL in particular, on which solutions for individual non-compliance cases can be built through systemic interpretation. There is, however, ample room – and the need – for improvement. The clearer the rules, the weaker the basis to argue for compliance avoidance, and the less likely we are to having to rely on case-by-case hermeneutics. A Global Pact would indeed offer relevant guidance to international and domestic courts alike.
Furthermore, if such concerns were to prevail, IEL would likely become an ossified structure, as fear of recognizing systemic shortcomings would detain progress altogether.
Do we need a legal instrument?
Some delegations argued that existing mechanisms and institutions should be strengthened rather than creating a new text, and that as there are already too many instruments, implementation and effectiveness of existing treaties should be reinforced.
Here the dissent is purely apparent: a Global Pact would in fact significantly contribute to the achievement of these laudable goals. Creation of such a touchstone – a comprehensive and unifying international instrument – would bring much needed cohesion to the system, and provide building blocks to reinforce its effective implementation. The task at hand should definitely not be framed in terms of an either-or proposition.
Also, some countries whose constitutions recognize a right to a healthy environment may take this for granted, but the Ripple effect that a Global Pact would have across the board – internationally and domestically – would not be negligible, especially considering the great advancement of IEL since the recognition of a broad set of principles in 1992.
Are there gaps within regimes, or across them?
Discussions at the First Substantive Session revolved quite extensively around the assessment of whether there are gaps within regimes, with many delegations concluding that there are not. This is questionable, as even though sectoral regimes typically show a high degree of specialization, they are not without flaws and are certainly not immune to obsolescence. IEL, however, must be understood in systemic terms. As fragmentation occurs transversally, across regimes – for instance, some treaties expressly recognize the rights of indigenous peoples, while other do not –, a Global Pact remains a vital tool for cohesion.
Can a Global Pact and regime specialization coexist ?
The specialization that is inherent to each regime has peculiarities that must be respected. This is not in the least incongruent with the concept of a Global Pact.
Indeed, four and a half decades after the landmark United Nations Conference on the Human Environment held in Stockholm in 1972, there is sufficient accumulated experience to assess the effectiveness of the efforts to incorporate the environmental agenda into international discussion forums. This has led to the perception that addressing international environmental issues in a casuistic, ad hoc, fashion is less than ideal, and that a greater degree of coordination is needed.
The multiplicity of actors, locations, and themes involved in the environmental regime creates complexities that have been difficult to articulate. Although local, regional, national, and global initiatives have been flourishing in both the public and private sectors, these efforts still lack more robust coordination. By attempting to provide a common framework of international environmental legal concepts, the pact could work as an authoritative focal point helping bring coherence to the myriad of relationships unfolding in the global environmental arena.
From a pragmatic standpoint, a set of common principles and rules would, at the very least, expedite future sectoral negotiations, as the need to negotiate general principles for each treaty would no longer exist.
Would a Global Pact disproportionately burden least developed and developing countries ?
IEL has been slowly but inexorably evolving towards the recognition of common but differentiated responsibilities and the centrality of capacity building. As another step ahead down this path, an effective Global Pact would not create cumbersome obligations for least developed and developing countries; to the contrary, it would aim at establishing a framework that favors compliance and environmental fairness.
Should a Global Pact compile widely recognized IEL concepts or aim at introducing newer IEL concepts?
A primary goal of the Global Pact is that of compiling widely accepted principles of IEL, providing a uniform framework of interpretation to environmental MEAs and other relevant documents.
The Global Pact would be able not only to codify a consistent conceptual understanding, however, but also to seize this invaluable opportunity to effectively foster the advancement of IEL, by codifying newly recognized principles such as those of non-regression and participation of non-state actors. The latter issue is particularly important because despite their growing importance as subjects of International Law, civil society still suffers from a noticeable participation deficit in international negotiations.
Does a Global Pact entail risk of regression?
At the First Substantive session, there were references to unspecified principles of IEL that would be outdated. Conversely, however, a growing set of IEL principles has been in constant development, chiefly in the past three decades, in order to adequately reflect the growing importance of ensuring protection of the environment on a global level.
The Global Pact would provide much-needed conceptual clarity, precision and gravitas to principles that have evolved through the legal and diplomatic process over the last fifty years, thus equipping the regime with a much-welcome level of cohesion and addressing significant information and knowledge gaps. The ever-expanding recognition of the principle of non-retrogression is a harbinger of the realization that there is no room for regression in the process.
Are Working Group sessions the appropriate venue to discuss gaps in IEL?
Two main arguments were put forth in the sense that Working Group sessions should not tackle the issue of discussing gaps in IEL.
The first considers that the mandate of the International Law Commission (“ILC”) to codify principles would suffice, and that the Working Group would unduly duplicate efforts that are already taking place within the UN system. ILC Report A/72/10, however, refers solely to “general principles of law”; indeed, not a single word is spent on IEL.
Environmental matters may be transversal or incidental to questions based on other grounds, for instance health, peace and security, food safety, and international trade. However, the specificity of its object and relevance of environmental protection to ensure continuity of life on the planet justify an endeavor to address IEL as an independent topic.
Secondly, some delegations argued that the Working Group lacks resources and expertise to assess gaps in IEL. It should nevertheless be reminded that the proposal of a Global Pact originated from civil society, namely from a group of jurists from around the globe representing the pinnacle of the expertise amassed to date in the field. True to the origins of the pact, civil society reaffirms its commitment to the process triggered by Resolution 72/277, as it is an excellent opportunity to promote a range of improvements to strengthen IEL.