THE AUTHORS: Yann Aguila is a Partner at Bredin Prat and Lionel Chami is Special Advisor to the Global Pact
For thirty years, the international community of jurists has called for the adoption of a treaty to enshrine the founding principles of environmental law. The Stockholm Declaration of 1972 and the Rio Declaration of 1992 recognized these fundamental principles, which are largely agreed upon today. But even though these texts have a significant symbolic impact and have inspired breakthroughs on environmental matters, they are not legally binding.
This is why jurists have long called upon States to bring these principles together in a binding text. This was first the case in 1987 with the Brundtland Report, which includes a list of “Legal Principles for Environmental Protection and Sustainable Development”. Then again in 1995, with the draft International Covenant proposed by the International Union for Conservation of Nature.
This was again the case in 2017 with the draft Global Pact for the Environment. This text results from a collective work: it follows in the footsteps of many international precedents from which it finds inspiration. It is also the result of a proposal made in 2015 by the Environment Commission of the Club des Juristes, chaired by Yann Aguila, in its report on “The Effectiveness of International Environmental Law: Duties of States, Rights of Individuals.” Finally, it stems from the work of a network of about 100 experts, representing nearly 40 nationalities and led by Laurent Fabius, President of the French Constitutional Council and former President of COP 21.
This project was discussed at length in the United Nations. On May 30, 2018, the United Nations General Assembly paved the way for the negotiation of the text by adopting resolution 72/277 entitled “Towards a Global Pact for the Environment.” After several years of negotiations, and due to the reluctance of a small number of disinclined States, the project’s ambition was dimmed down: the UN Member States opted to abandon the idea of a binding treaty in favor of a political declaration. The latter was adopted on March 3, 2022, in commemoration of the 50th anniversary of the United Nations Environment Programme. At the same time, the symbol of the Global Pact has sown the seeds of a growing movement for the recognition of the right to a healthy environment.
Thus, the 2017 text constitutes a contribution of the legal community to the reflection of States. It crystallizes the opinion of the most eminent jurists of the various nations on the identity and content of the main principles of international environmental law. Although it could not see the light of day as a legally binding international treaty, its text is still relevant for jurisdictions. As former British Supreme Court Justice Lord Carnwath attests, the Pact remains a valuable asset in judicial decision-making as a concise and authoritative source of recognized principles of environmental law.
The Content of the Pact
With its broad scope, the Global Pact for the Environment would strengthen the coherence of international environmental governance. Indeed, the current system is defined by the fragmentation of international institutions and the multiplication of transnational environmental norms, both technical and sectoral. The Pact seeks to become the cornerstone of international environmental law, with the sectoral conventions serving to implement the general principles of the Pact in specific areas.
Based on consensus, the draft Pact musters twenty principles, balanced between rights and duties, and supplemented by six articles for the final provisions. Two “source principles” – a right and a duty – constitute its core: the right to a healthy environment and the duty to take care of the environment. Being interrelated, they must be read together, for the right of human beings to their environment cannot exist without responsibility towards nature. From this core emerges a series of “derived principles” that are widely recognized today: duties of prevention and remediation of environmental harms, the right to information and public participation in environmental decision-making, and access to environmental justice. The draft Pact also proposes some innovations, such as the official recognition of the role of civil society in protecting the environment and the non-regression principle, which forbids any backtracking when it comes to environmental legislation.
If such a text were to be adopted, it would complete the legal edifice and consolidate the achievements of the Rio Declaration. In the spirit of the great works of codification, it would strengthen agreed-upon principles that have only been enshrined so far in soft law.
As a living and evolving text, the adoption of the Pact would trigger a new legislative and jurisprudential dynamic inspiring national lawmakers and judges in each State. Its authors favored a short text with general and short formulations. It is not necessary for a text with a global ambit to delve too much into details. The benefit of an open-ended principle lies precisely in its undetermined nature: it has an open structure, creating a fertile dynamic, leaving each State a margin of discretion to implement it in light of national contexts.
The Pact is intended to become an instrument of action: at a later stage, monitoring bodies of the Pact would be responsible for interpreting the principles and specifying how to progressively implement them. The Implementation Committee of the Pact should be a place to exchange experiences among States to make recommendations useful to all, in light of the best national practices. The implementation of the Pact could be progressive. It would strengthen the legal framework in each State by requiring the adoption of more environmentally protective legislation.
On September 19, 2017, French President Emmanuel Macron held a ‘Summit on a Global Pact for the Environment’ on the margins of the 72nd session of the UN General Assembly in New York to introduce the project to the diplomatic scene. On this occasion, UN Secretary-General António Guterres, UN General Assembly President Miroslav Lajčák, and UNEP Executive Director Erik Solheim expressed their support for the project.
On May 10, 2018, the United Nations General Assembly adopted resolution 72/277 entitled “Towards a Global Pact for the Environment”, which formally launched international negotiations on the adoption of such a Pact. It established the negotiations’ terms of reference and provided for:
- The presentation of a report by the United Nations Secretary-General to the General Assembly towards the end of 2018, identifying the eventual gaps in international environmental law that the Pact might close.
- The creation of an open-ended working group, open to all Member States, tasked with examining this report and discussing whether the issues addressed in the report would be solved by the adoption of the Pact as a new international treaty.
From September 5 to 7, 2018, the working group held its first organizational session in New York. There, the Member States scheduled for three substantive sessions to take place in Nairobi in January, March, and May 2019. This group was chaired by two co-chairs that were nominated by the President of the United Nations General Assembly, Miroslav Lajčák. These were Francisco António Duarte Lopes, Permanent Representative of Portugal and Amal Mudallali, Permanent Representative of Lebanon.
In December 2018, the United Nations Secretary-General published his report on the Global Pact for the Environment. The report, entitled “Gaps in International Environmental Law and Environment-Related Instruments: Towards a Global Pact for the Environment”, underlined that the effectiveness of international environmental law could be strengthened by a comprehensive and unifying international instrument that enshrines all the principles of environmental law. Such an instrument “could provide for better harmonization, predictability and certainty.”
In June 2019, the working group adopted recommendations that were a clear step back from the original proposals of the co-chairs. Indeed, resolution 73/333 of August 30, 2019, which endorses these recommendations, opts for a simple “Political Declaration” to be adopted in 2022, on the occasion of the 50th anniversary of the creation of the United Nations Environment Programme. These recommendations constitute a setback when compared with the project’s ambition, which was to create a legally binding international treaty enshrining the general principles of environmental law.
On March 3rd, 2022, after two years of negotiations, the Member States of the United Nations Environment Assembly adopted this political declaration on the occasion of the 50th anniversary of the United Nations Environment Programme. The text of this political declaration is sorely lacking in ambition: its provisions are limited to repeating previous formulations, particularly from the 1992 Rio Declaration.
Extensions of the Pact
However, the growing movement for the recognition of the right to a healthy environment reveals that the spirit of the Global Pact for the Environment is still alive and well. On October 8, 2021, the Human Rights Council adopted resolution 48/13 by a vote of 43 in favor, none against, and 4 abstentions (China, India, Japan, and Russia). This resolution recognizes for the first time at the international level the right to a healthy environment as a human right. This right is the first article of the draft Global Pact for the Environment. Its recognition follows an international campaign led by more than a thousand NGOs and fifteen UN agencies.
This resolution also invites the General Assembly of the United Nations in New York to examine the issue. The General Assembly could thus be called upon to decide on the adoption of a similar resolution. Such recognition would give more weight to the right to a healthy environment on the international scene.
These resolutions could pave the way for the eventual adoption of an international convention on the right to a healthy environment. According to UN Special Rapporteur on Human Rights and the Environment David Boyd, such a treaty would constitute an extension of the proposed Global Pact for the Environment.
ABOUT THE AUTHORS
Yann Aguila is a Partner at Bredin Prat and heads the Public Law Practice. He advises on all aspects of public law and environmental law in connection with transactions and litigation. He lectures on public law and environnemental law at Sciences Po, at the National School of Administration (ENA) and at the Paris Bar School. He is also a member of the legal think-tank, the Club des Juristes, where he chairs the Environmental Law Commission. He is also President of the Global Pact Coalition.
Lionel Chami is Special Advisor to the Global Pact for the Environment and manages the campaign for its adoption. He is an international law professional with experience in public relations and serves as the main editor of the Pathway to the 2022 Declaration platform, a blog by jurists for diplomats. His previous experiences focused on operating an anti-corruption and Rule of Law program at the United Nations. He also teaches at Science Po. Lionel has published in subject related to energy, environmental, and investment law.
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