By Susan Biniaz*

United Nations General Assembly (UNGA) Resolution 72/277,[1] at least on paper, appears to rectify one of the flaws in the original French proposal for a new international environmental agreement, or “Global Pact for the Environment.” France’s draft agreement, which did not provide a compelling link between its approach and a particular environmental problem, left many readers confused and concerned.  In contrast, the Resolution sets out a linear methodological approach.  It asks a working group to consider whether there are possible “gaps” in existing environmental law and policy and, if so, to discuss possible options for addressing them.  These might include one or more new international instruments. States should take advantage of this opportunity to consider the issues systematically and non-politically, in the hopes of focusing global effort on key areas in need of strengthened international attention.

The Original French Proposal

France’s proposed “Global Pact for the Environment” took the form of a legally binding instrument addressing a dizzying array of subjects:  human rights, environmental principles, climate change, the law of war, and so on.[2]

I raised serious substantive questions about the proposal.[3]  While all in favor of efforts to enhance worldwide environmental protection, I saw the draft text as, among other things, confused about its purpose, misguided in its one-size-fits-all-environmental-issues approach, unclear as to its effect on existing international environmental law, and potentially undermining of current agreed environmental principles.

As a matter of process, I found it disturbing that the proposal set out a solution – i.e., a new, overarching agreement with broad, legally binding principles – without a persuasive case that such an instrument bore any relationship to real-world environmental problems.  The proposed Global Pact seemed to be a solution in search of a problem, rather than in response to one.

I was also concerned about the opportunity cost of negotiating such an agreement, particularly coming, as it did, on the heels of the Paris Agreement.  Paris left many issues for future resolution and, more broadly, the climate challenge requires ongoing, all-hand-on-decks efforts to enhance ambition.  A new instrument without a clear and urgent purpose could easily become a distraction from those and other critical undertakings.

Unfortunately, because of the ambient political atmosphere, in particular the U.S. retreat from the Paris Agreement and general antipathy toward environmental protection, these questions and concerns, also raised by others, were largely not answered.  Rather, there was an implication that to challenge the Global Pact was to be against the environment or – worse yet – to be on the side of Donald Trump.

Fortunately, there was sufficient pushback at the United Nations to knock the original draft off the table and set up a far more rational, step-by-step approach to considering the issues.

The UNGA Resolution

In contrast to France’s “solution first” approach, the Resolution takes an open-ended approach to the ultimate outcome:

  • First, it calls for the UN Secretary-General to present a report to the General Assembly identifying and assessing “possible gaps” in international environmental law and, in order to cover non-legally binding documents, in “environment-related instruments” as well. In both cases, the report is to have the view of “strengthening their implementation.”  While, as discussed below, States may or may not agree with the report on what it characterizes as “gaps,” beginning with the perceived problems is at least a logical methodology.
  • Second, the Resolution establishes an ad hoc open-ended working group, under UNGA auspices. The group is to “consider the report” and “discuss possible options to address possible gaps…as appropriate.” It does not restrict the consideration to possible gaps identified in the Secretary-General’s report.
  • Third, the group is asked to discuss, “if deemed necessary,” the scope, parameters, and feasibility of an international instrument, with a view to making recommendations to the General Assembly. Such recommendations “may include” the convening of an intergovernmental conference to adopt an international instrument.

 

It should be noted that, notwithstanding the title of the Resolution (“Towards a Global Pact for the Environment”), the text does not actually mention a Global Pact.  The working group’s mandate does not necessarily anticipate agreement on the need for a new “international instrument” and, even if so, does not specify its form, legal character, or name.  It does not preclude a multi-pronged outcome to address several issues, as opposed to a single outcome. The Resolution also makes no reference to the original French draft text.

Thus, discussions launched by the Resolution might lead in one of several different directions, for example, a new legally binding instrument covering a single issue or a wide range of topics; a new instrument of a political character aimed at one or more issues; actions (such as increased funding, a campaign, or a high-level gathering) not involving a new instrument; a combination of the above; or no action.

What is a “Gap”?

As noted, the Resolution calls for a report on “possible gaps.”  The word “possible” is appropriate, as States may legitimately have different views as to what constitutes a “gap” in international environmental law or policy (or even whether there are any).

The strongest case for a “gap” may be when an entire environmental topic has been unaddressed (or sorely under-addressed). For example, at the Rio Earth Summit, States agreed to negotiate a new convention on desertification, which had not previously been the subject of an international agreement.  Whether or not States fully supported that decision, they would likely have considered the issue of desertification to be a “gap” in international environmental law.

In other cases, however, what might look like a “gap” may have been an intentional design choice on the part of negotiators of an instrument.  The design choice might have been motivated by considerations of substance, politics, and/or participation. The choices might have involved, for example, one or more non-legally binding provisions, exceptions to a general rule, provisions that allow a Party to opt out of a particular commitment, grace periods, or the absence of compliance/enforcement procedures.

With respect to these the latter cases, States are likely to consider any particular absence or omission part of the delicate balance that led to an acceptable agreement, rather than a “gap.”  For example, the exclusion of developing country commitments from the Kyoto Protocol would not likely be viewed as a gap, at least not by developing countries. Similarly, countries whose particular situations were accommodated in various agreements are unlikely to think that the applicable provisions are “gaps,” even if, as a factual matter, the accommodations leave certain issues or Parties lightly covered or not covered at all.  And countries that fought hard for a non-legally binding approach to a particular instrument or provision – or for a light compliance regime – will not be inclined to find the absence of a legally binding commitment – or strict enforcement – to be a “gap.”

In addition, it is unclear whether a “gap” relates to the written word or to the environment itself. If the text of an environmental agreement appears to completely cover a subject, but the environmental issue is de facto far from being satisfactorily addressed, is that a gap?  Alternatively, if an agreement appears incomplete de jure, yet the environmental issue is being adequately addressed on the ground, is that a gap?

For all of the reasons above, there are bound to be threshold issues concerning the extent to which there are “gaps” in international environmental law and policy.

Types of Gaps

Setting aside whether States can agree that a particular absence or omission constitutes a “gap” within the meaning of the Resolution, it is worth considering the different types of gaps that could theoretically exist.

  • A gap might relate to substance, i.e., the lack of coverage (total or partial) of a particular topic or issue.
  • A gap might relate to legal character, i.e., the issue is currently addressed in non-legally binding form, whether in a political instrument or within an otherwise legally binding instrument.
  • A gap might relate to Parties, i.e., certain commitments do not apply to particular Parties.
  • A gap might relate to geography, i.e., certain regions are covered, but others are not.
  • A gap might relate to international compliance/enforcement, i.e., there are relevant commitments, but the absence of strong compliance and/or enforcement procedures.
  • A gap might relate to domestic action, i.e., international commitments are adequate but there are inadequate commitments to implement or enforce them domestically.
  • A gap might relate to resources, i.e., developing countries in particular may not have sufficient funding, capacity, etc., to carry out their international commitments.
  • A gap might relate to political will, i.e., the right international commitments are in place, yet States are not in a political position to implement them.
  • Finally, a gap might relate to institutions, i.e., a need for one or more mechanisms, organizations, or institutions to enhance coordination or other forms of cooperation.

 

The French proposal would presumably fall into at least two of these categories, i.e., a substantive gap (right(s) to a healthy environment) and a legal character gap (legally binding environmental principles).

Options to Address Gaps

Assuming States identify one or more gaps in existing international environmental law/policy, they will need to consider options for addressing such gap(s).  The options will obviously depend upon the nature of the gap.  The threshold question whether a gap needs to be addressed will likely depend upon factors such as:

  • the environmental significance of the gap;
  • the urgency of addressing the gap;
  • the probable reasons for the existence of the gap;
  • the desirability of addressing the gap; and
  • the likelihood of reaching international agreement on how to address the gap (including the extent to which States have previously attempted to address it.

 

Further, even where States may agree that there is a gap regarding a particular topic  — and that it needs to be addressed – States may raise a “jurisdictional” issue if that gap falls within the scope of an existing international agreement.  In other words, given the institutional context of the Resolution, States may consider that it is up to the Parties to a particular agreement, rather than the UNGA, to decide whether/how to address any particular gap.

Assuming agreement that a gap needs to be addressed and that it is within the purview of the UNGA to speak to it, recommendations for addressing it may include, for example:

  • pursuing an amendment to an existing instrument (if the gap is within, or related to, the scope of an existing agreement or other instrument);
  • pursuing a new instrument, whether regional or global, and of either a legal or non-legal nature;
  • pursuing action that does not require either a new or amendment instrument (such as increased funding to one or more existing international financial institutions or increasing international attention through a summit, dialogue, etc.); and/or
  • pursuing other efforts to promote the efficacy of international environmental law/policy, such as the development of model legislation, increased capacity-building for domestic enforcement, etc.

 

Recommendations should be tailored to the specific environmental problem in question.  Further, with respect to a new instrument, particularly a legally binding one, it would be important for coherence’s sake to make clear its relationship, if any, to existing international law.  As noted, a key problem with the proposed Global Pact as drafted was the lack of clarity concerning the intended effect of its legally binding principles on the many existing environmental agreements that also contain such principles (in most cases, carefully formulated to address particular issues), but in non-binding form and with different wording.

Four Hypothetical Illustrations

Taking into account the factors and options above, States might analyze various notional “gaps” as follows:

  1. Domestic implementation of international commitments
  • States might conclude that the single most significant gap in international environmental law/policy is inadequate domestic implementation. In other words, it may be that the problem is not the dearth of international agreements and commitments but insufficient implementation of those agreements/commitments at home.  This focus would be consistent with the Resolution’s emphasis on “strengthening the implementation” of international environmental law and environment-related instruments.
  • The root causes of the gap might be lack of political will; insufficient resources or capacity, particularly in less developed countries; and/or ineffective domestic enforcement of otherwise adequate laws.
  • Options for addressing the problem might include, e.g., a high-level UN pronouncement that mobilizes political support; a public awareness campaign that indirectly bolsters political support; increased funding and capacity-building for developing countries; and/or a new instrument that focuses on the effective enforcement of domestic environmental laws that implement international environmental commitments.

 

  1. Response to climate change
  • It might be suggested that climate change is the overriding environmental challenge of our time and that there are various “gaps” concerning the international response that need to be addressed. These need to be taken in turn.
  • First, some may posit, for example, that the Paris Agreement reflects certain deficiencies that need to be addressed. These might include the lack of legally binding emissions targets or the “nationally determined” nature of contributions.  Here, regardless of their views as to whether legally binding or negotiated targets would strengthen, weaken, or not affect the robustness of the global response, States are likely to consider that the current nature of Paris targets is not a “gap,” but rather a deliberate, integral aspect of the Paris package.  Further, in any event, as a matter of process, they are likely to consider that the Parties, rather than the UN, should be the arbiters of any necessary modifications to the Agreement.
  • Second, it might be suggested that, in light of the global average temperature goal, there is an “ambition gap,” i.e., an urgent need for actors at all levels (States, non-national governments, businesses) to enhance their climate-related actions. Addressing this concern would not require any change to the Paris Agreement; further, the need for greater ambition includes, but extends beyond, the enhancement of “nationally determined contributions” under the Agreement.  Thus, States might determine that the UN should take the necessary steps to call for additional action, including in the context of the Secretary-General’s 2019 Climate Summit.
  • Third, it may be suggested that there is a “gap” in terms of global consideration of the nexus between climate change and security. This issue is of significance, is not covered by the Paris Agreement, involves international security, and is cross-cutting; as such, States might determine that the UN is the appropriate forum for addressing it.

 

  1. Substantive environmental rights
  • It might be suggested, as reflected in France’s draft Global Pact, that a key gap is the absence of a global international agreement setting forth substantive rights related to a clean/healthy environment.
  • There is in fact no such agreement; for example, the Aarhus Convention is both regional and focused on procedural rights.
  • The question for States would be whether this is a gap that should be filled and, if so, how.
  • States are likely to have differing views on the desirability of such a right(s), as well as on its definition, territorial scope, and manner of enforceability. They may also consider whether environmental protection at the domestic level would be better strengthened through the incorporation of a general right or the adoption of more specific environmental laws (i.e., ones that are concrete in terms of their implementation and enforcement).
  • If it were deemed desirable to advance a substantive right to a clean/healthy environment, this could be done through a binding international agreement (as in the case of, e.g., the International Covenant on Civil and Political Rights), a non-binding instrument (as was the case with, e.g., the Universal Declaration of Human Rights), and/or model constitutional provisions reflecting such a right.

 

  1. Ocean Plastics
  • Pollution of the marine environment from plastic litter and micro-plastics has become a significant issue, both environmentally and policy-wise. UNEP’s UN Environment Assembly (UNEA) adopted a resolution on the subject, and several G7 Member States endorsed an Ocean Plastics Charter at the 2018 Summit in Canada.
  • While there are regional seas agreements addressing land-based sources of pollution, there is no global agreement specifically on the subject of marine pollution from plastics; further, the current focus on a “lifecycle” approach to plastics stewardship on land and at sea goes beyond typical ocean-related agreements.
  • The UNEA resolution is reflective of international support for further addressing the ocean plastics issue. However, because that Resolution already launched a process, including the establishment of an Ad Hoc Working Group that will identify a range of potential responses, States might consider that, institutionally speaking, there is no need for the UN to identify options as well.  At the same time, the significance of the environmental problem, coupled with the urgency to address it and the fact that it cuts across the mandates of many international agreements and institutions, might argue in favor of additional UN action.
  • Recommendations might take the form of a recommendation for a binding instrument, a non-binding instrument, efforts to enhance public awareness, partnerships with non-State actors, etc.

 

UNGA Resolution 72/277 may or may not be headed “[t]owards a Global Pact for the Environment.” It does, however, afford States the opportunity to step back and methodically consider the most important missing pieces in the environmental law/policy arena and the best manner and forum to address them.  It is hoped that rigorous consideration will channel global political effort – a precious commodity – into the most environmentally beneficial outcomes.

*Susan Biniaz is a former Deputy Legal Adviser at the U.S. State Department, where her responsibilities included the climate change negotiations and other international environmental issues.  She is currently a Senior Fellow at the Yale Jackson Institute, an Associate Researcher at the French think tank IDDRI, and a Senior Advisor at the Center for Climate and Energy Solutions.

[1] See A/RES/72/277, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/72/277/

[2] See draft Global Pact for the Environment, https://cidce.org/wp-content/uploads/2017/01/scan1_EN.pdf

[3] See Biniaz, 10 Questions to Ask About the Proposed “Global Pact for the Environment,” http://columbiaclimatelaw.com/files/2017/08/Biniaz-2017-08-Global-Pact-for-the-Environment.pdf

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