Global Perspectives on a Global Pact for the Environment


Posted on September 20th, 2018 by Tiffany Challe

Edited by Michael Burger (Sabin Center for Climate Change Law), Teresa Parejo (UN Sustainable Development Solutions Network) and Lisa Sachs (Columbia Center on Sustainable Investment).

With research and administrative support from Nathan Lobel (Columbia Center on Sustainable Investment).

On May 10, 2018, the United Nations General Assembly (UNGA) adopted Resolution 72/277 (“Toward a Global Pact for the Environment”), which calls for the Secretary General to submit “a technical and evidence-based report” on “possible gaps in international environmental law and environment-related instruments” at the 73rd session of the UNGA. The resolution also establishes an “ad hoc open-ended working group… to consider the report and discuss possible options to address possible gaps.”

As the UNGA convenes this week, we are bringing together independent thought leaders and legal scholars from around the world to weigh in on what, if anything, the process initiated by UNGA Resolution 72/277 might usefully accomplish; and what the United Nations agencies, national governments and civil society stakeholders engaged in the process could usefully consider. Together, these perspectives identify a number of existing issues that merit attention and, if heeded, might inform negotiations on the future of international environmental governance. 

  • Marisol Anglés HernándezResearcher, Institute for Legal Research, National Autonomous University of Mexico
  • Sumudu AtapattuDirector of Research Centers and Senior Lecturer, University of Wisconsin Law Schoo
  • Lisa BenjaminVisiting Assistant Professor of Law, Pennsylvania State University
  • Susan BiniazFormer Deputy Legal Advisor, US State Department; Senior Fellow, Jackson Institute for Global Affairs at Yale University; Associate Researcher, IDDRI; Senior Advisor, Center for Climate and Energy Solutions
  • Daniel BodanskyFoundation Professor of Law, Arizona State University Sandra Day O’Connor College of Law
  • Ben BoerDistinguished Professor, Research Institute of Environmental Law, Wuhan University; Emeritus Professor, University of Sydney
  • David R. BoydSpecial Rapporteur on Human Rights and the Environment, United Nations Human Rights Council
  • Maxine BurkettProfessor, University of Hawaii at Manoa William S. Richard School of Law
  • Bharat H. DesaiProfessor of International Law and Jawaharlal Nehru Chair in International Environmental Law, Jawaharlal Nehru University
  • Fabrizio FracchiaProfessor, Department of Law, Bocconi University
  • Pilar García PachónDirector, Department of Environmental Law, Externado University, Colombia
  • Michael B. GerrardProfessor, Columbia Law School
  • John H. KnoxHenry C. Lauerman Professor of International Law, Wake Forest University School of Law
  • Pilar Moraga SariegoProfessor, University of Chile
  • Damilola S. OlawuyiAssociate Professor of Law, Hamid Bin Khalifa University College of Law and Public Policy
  • Nilufer OralFaculty of Law, Istanbul Bilgi University; Member, United Nations International Law Commission; Member, IUCN World Commission on Environmental Law
  • Luciano Parejo AlfonsoAdministrative Law Professor Emeritus, Carlos III de Madrid University
  • Jorge E. ViñualesProfessor of Law and Environmental Policy, University of Cambridge
  • Alex L. WangProfessor of Law, UCLA School of Law

Marisol Anglés Hernández 

Researcher, Institute for Legal Research, National Autonomous University of Mexico

States currently face urgent challenges regarding the preservation of the bases for supporting life and development. Therefore, working on the adoption of the Global Pact for the Environment is an opportunity to develop and define a legally binding instrument based on the principles of environmental law, which have evolved over more than half a century, through their incorporation into some international treaties and conventions, as well as in reports, rapporteur reports, general comments and, among others, advisory opinions that have become a source of jurisprudence in international, regional and local spheres.

Thus, the effort led by the French government, prompted by various actors from both government and academia, opens up the possibility to change the course that the world’s governments have followed up to date; a course that has seriously affected people’s lives and health, as well as ecosystems. To mention just a few issues, it has resulted in the loss of biodiversity, a decline in agricultural productivity and global warming, all of which have implications not only for living beings, but also for economies. Consequently, we should not be afraid of such commitments; on the contrary, it is imperative to take up this initiative with co-responsibility, stressing the progressive nature of rights so that, guided by the United Nations, the content and scopes proposed in the Pact may be perfected to build a long-term vision of development for all nations, encompassing present and future generations.

We must recall that speaking of ecological disaster does not only refer to environmental aspects, since inputs for economic activities come from ecosystems. Indeed, the deterioration of the environment diminishes countries’ possibilities for development. Therefore, the vision embraced by the Global Pact for the Environment must adhere to a rights-based approach to development, as well as to sustainability and resilience.

 

Sumudu Atapattu 

Director of Research Centers and Senior Lecturer, University of Wisconsin Law School

The French Government should be congratulated for proposing the Global Pact for the Environment and spearheading the adoption of a resolution at the UN General Assembly.  This document brings into sharp focus the fact that international law does not yet recognize a right to a healthy environment despite innovative developments at regional and domestic levels.

One region where the judiciary has been active is South Asia where its apex courts have interpreted existing rights broadly and creatively to articulate a right to a healthy environment.  Except for the 2015 Constitution of Nepal, none of the constitutions of South Asian countries includes a justiciable right to a healthy environment.  Yet, the judiciaries have interpreted existing rights – specifically, the rights to life, dignity and equality – to articulate environmental rights.  They have developed a robust body of jurisprudence by: (a) interpreting existing rights expansively; (b) treating directive principles of state policy as being justiciable; (c) applying international environmental law principles directly in their decisions; and (d) relaxing principles relating to standing and allowing for public interest litigation and even taking up cases suo motothereby ensuring that grievances of voiceless and marginalized victims are brought to the attention of the court. Thus, the international community can learn a lot from the existing jurisprudence on environmental rights from South Asia.  Let us hope that the momentum created by the Global Pact will finally lead to the recognition of a distinct, stand-alone right to a healthy environment under international law.

 

Lisa Benjamin

Visiting Assistant Professor of Law, Pennsylvania State University

The Global Pact for the Environment, as originally drafted, aims for a more holistic and cohesive approach to international environmental law, motivated by two source principles: the right to a healthy environment (draft Article 1) and a duty to take care of the environment (draft Article 2). Though the draft is but one part of the current negotiations, I would like to focus on Article 2, which would bind “every person, natural or legal, public or private” – attempting to  impose a binding legal obligation on corporations.

The contours of such a duty would remain unclear for some time, but combined with Article 1, would likely involve a variety of subsidiary and related duties, including in the area of human rights and the environment. Corporations are not formal legal actors under international law, and legal efforts to hold corporations liable for both human rights violations and environmental harm have had a long and contentious history. As a result, voluntary approaches have dominated, such as the United Nations Global CompactJohn Ruggie’s 2008 Framework imposes only a responsibility, not a legal duty, on companies to respect human rights. The Global Pact could change this.

Since the Paris Agreement, legal developments in the area of increased corporate liability for climate-induced damages have gained traction (see, for example, the Task Force on Climate-related Financial Disclosures, the Enterprise Principles, the activities of the Human Rights Commission in The Philippines and at least one court decision in Germany). But liability for climate-induced damage is complex, due to issues of attribution and causation. A duty imposed for more directly attributable pollution under The Pact, such as deforestation or oil spills, may be easier to define and therefore to enforce on corporations. This would, still, however, represent a dramatic directional shift in international environmental law.

 

Susan Biniaz

Former Deputy Legal Advisor, US State Department; Senior Fellow, Jackson Institute for Global Affairs at Yale University; Associate Researcher, IDDRI; Senior Advisor, Center for Climate and Energy Solutions

UNGA Resolution 72/277 sets out a step-by-step methodology for considering whether there are “gaps” in international environmental law and, if so, options for addressing them.  It thereby rectifies one of the flaws in France’s original proposal for a “Global Pact for the Environment,” which offered an agreement with broad, legally binding principles but without a persuasive case that it bore any relationship to real-world environmental problems.  (The draft agreement also raised serious substantive issues, including that it was misguided in its one-size-fits-all-environmental-issues approach and unclear as to its effect on existing agreements.)

At the same time, the identification of “gaps” may not be straightforward.  Theoretically, a gap might involve subject matter, stringency, coverage, legal character, enforcement, resources, institutions, or political will.  However, one person’s “gap” may be another person’s intentional design choice (e.g., the Paris Agreement’s nationally determined contributions or “opt outs” under CITES or the IWC).  Further, a de jure gap on paper may not be a de facto gap in the real world, and vice versa.

Assuming a gap(s) exists – marine pollution from plastics comes to mind — States should consider its environmental significance and the urgency/desirability of addressing it.  If they decide to proceed, options include, e.g., an amendment, a new instrument (legal or not), increased funding, capacity-building for domestic enforcement, mobilizing international attention (e.g., through a summit), or model legislation.

Resolution 72/277 gives States the opportunity to consider, in a linear fashion, the most pressing missing pieces in the international environmental arena and the best manner and forum to address them. They should think creatively, drawing on the many innovations in the international environmental field. It is vital that global political effort — a precious commodity – be channeled into the most environmentally beneficial outcomes.

 

Daniel Bodansky

Foundation Professor of Law, Arizona State University Sandra Day O’Connor College of Law 

UN General Assembly Resolution 72/277 requests the Secretary-General to prepare a “technical and evidence-based report that identifies and assesses possible gaps” in international environmental law (IEL).   But whether “gaps” can be identified and assessed in a “technical and evidence-based” manner is questionable.

The term “gap” has both a descriptive and normative meaning.  Descriptively, a gap is simply a discontinuity.  Normatively, a gap is something missing that needs to be filled – a flaw.

In the descriptive sense, legal gaps (or non liquets) exist, if at all, only in very rare cases where the law does not decide an issue one way or the other – where an action is neither permitted nor prohibited.  Whether any such gaps exist in IEL is doubtful, since ordinarily the absence of a legal rule regulating an issue (say, plastics pollution or protection of a species) does not create a gap in the law; it simply means that, legally, states are free to act as they choose.

UNGA resolution 72/277 seems to use the term, “gaps,” in its normative rather than descriptive sense, as things that need to be filled.  But identifying such gaps is not a technical exercise; it depends on what legal rules or agreements one believes should exist.  Is the lack of a general agreement setting forth environmental principles (like the Global Pact) a gap?  The question does not have an objective, evidence-based answer.  It depends on political and moral judgments about whether such an agreement would serve a useful purpose and hence be a good thing.

 

Ben Boer

Distinguished Professor, Research Institute of Environmental Law, Wuhan University; Emeritus Professor, University of Sydney

Over the past 25 years, various attempts have been made to draft an overarching international instrument with regard to the protection, conservation and restoration of the environment.  UNGA Resolution 72/277 indicates that the community of nations is ready to accept that the environment is of such fundamental global importance that a new instrument is required, on a level equal to the 1966 Human Rights Covenants.

The Resolution should stimulate debate on at least the following questions:

  1. Is the current draft of the Pact broad enough to specifically ‘address possible gaps in international environmental law and environment-related instruments’, or is something further required?
  2. If it is to be a ‘Third Pact’, specifically focused on the environment, should it adopt a format more similar to that of the ICESCR and the ICCPR?
  3. As an ‘umbrella instrument’, should the Pact contain a broadly stated objective?
  4. Does the current draft of the Pact include all of the substantive provisions necessary to form an ‘umbrella’ instrument to achieve its aims? Compare the 2015 IUCN Draft Covenant on Environment and Development.
  5. Should the current draft of the Pact add more detailed environmental law principles; for example, principle of progression? Compare the 2016 IUCN World Declaration on Environmental Law.

A drafting process similar to that of the 2015 Sustainable Development Goals  should be adopted. The outcome of the Resolution should result in a tightly argued report that sets out clear options for the name, breadth of focus and form of a legally binding instrument.

 

David R. Boyd

Special Rapporteur on Human Rights and the Environment, United Nations Human Rights Council

Although there are more than 1,000 international environmental agreements, they are fragmented, inconsistent, and missing key principles. The Global Pact for the Environment has the potential to unify and strengthen international environmental law by filling crucial gaps and achieving universal recognition of key principles. Perhaps the most compelling example is the fundamental human right to a healthy and sustainable environment (Art. 1 of the Pact).

Because the main human rights treaties pre-dated the emergence of global environmental concerns, they do not include the right to a healthy environment. Nor is this right included in any global environmental treaty. Yet humans are wholly dependent upon the environment for safe water, clean air, nutritious food, a non-toxic environment, thriving biodiversity, and a stable climate. Thus failing to recognize the right to a healthy environment is a major gap in international environmental and human rights law.

The right to a healthy environment is accepted by the majority of States. Internationally, it is found in several regional conventions, ratified by approximately 120 States. Nationally, the right to a healthy environment enjoys constitutional recognition in more than 100 States, and is incorporated in legislation in more than 100 States. In total, 155 States are currently obligated to respect, protect and fulfill the right to a healthy environment.

However there is a large gap between the legal recognition of this right and the implementation of measures to effectively protect this right. Plus there are still 40 States where the right to a healthy environment is not recognized.

By filling this critical gap, the Global Pact would act as a catalyst in two powerful ways. First it would spur additional States to legally recognize environmental rights. Second, it would compel States where the right already enjoys legal recognition to take additional measures to protect it. Everyone, everywhere should enjoy the legal protection of their right to a healthy and sustainable environment.

 

Maxine Burkett

Professor, University of Hawaii at Manoa William S. Richard School of Law

The Global Pact for the Environment has many virtues.  The proposal demonstrates a critical alignment to achieve a durable solution for the myriad colliding global crises.  Among other things, the Pact could buttress the Sustainable Development Goals and give teeth, coherence, and a coordination infrastructure to meet their ambitious time horizon.  The rights-based approach is also compelling. And, of course, a treaty law obligation on States to protect and preserve the environment–a comprehensive codification of basic rules and principles—is welcome at this late stage. Beyond negative obligations, like ‘no harm’, it moves to positive obligations writ large.

The Pact, however, suggests that we can effectively address the environment and our role by only addressing those laws that explicitly address the “environment”, a conceptually distinct and singularly governable entity.  Such compartmentalization has real-world impact, rendering environmental law and policy irrelevant to, for example, commercial law, corporate law and intellectual property. The effort to identify gaps in international environmental law furthers this fragmentation. As a consequence, policymakers at all scales literally lose the forest for the trees.

I encourage working group members to embrace an alternative that is equally ambitious, with greater effect – a “Green Audit” of international law. In addition to identifying and assessing possible gaps in international environmental law and environment-related instruments, the United Nations should undertake a serious interrogation and remediation of the environmentally destructive byproducts of agreements that are ubiquitous in international economic law, for example, and the habits and assumptions that undergird them.

A “Green Audit” of existing law—across international law—with the purpose of amending or dismantling destructive provisions would be most impactful. If time and political will allow, a Green Audit and a Global Pact would be optimal, but the Audit alone is most critical at this time.

 

Bharat H. Desai

Professor of International Law and Jawaharlal Nehru Chair in International Environmental Law, Jawaharlal Nehru University

The French initiative for a Global Pact for the Environment is a rare event wherein a permanent UN Security Council member has sought recourse to the UN General Assembly (UNGA) for identifying a core framework of principles and norms for global environment protection. The resultant UNGA resolution 72/277 has rolled out a process to identify “gaps in international environmental law and environment-related instruments”. The outcome could provide a ‘soft’ normative framework comprising various degrees of cogency, persuasiveness, and consensus. Soft law has played a significant role in the evolution of normative structure in various areas of international law.  In any event, hardness or softness of a rule will not impinge upon its normative character.

The outcome of the ‘Global Pact’ could become a landmark instrument for the advent of the third generation of human rights in the form of a declaratory statement or legally binding treaty and could be tagged to a UNGA resolution. The ‘pact’ could resemble the high-sounding 1982 ‘charter’ for Nature. These texts reflect the normative threshold for the states to conform their conduct to its requirement. As the past four decades of ‘treaty congestion’ and plethora of soft instruments in the environment field show, States prefer latitude within a prescribed normative framework. The UNGA has played the role of ‘conductor of a giant orchestra’ in concerted environmental regulatory processes since the 1972 Stockholm Conference,

The circumstances, the number of participating states as well as the manner of their adoption, often without vote, in the UNGA resolution impart a significant normative halo around them. The UNGA over the years adopted declaratory principles on a variety of subjects. In view of this, the crystallization of the proposed Global Pact will serve as landmark event since the 1992 Rio Earth Summit.

 

Fabrizio Fracchia

Professor, Department of Law, Bocconi University

Resolution 72/277 of the United Nations has requested the Secreatary General to elaborate a report to identify possible gaps in international environmental law and environment-related instruments that would justify the adoption of a Global Pact for the Environment. To this respect, I believe that there are  ten reasons to support the adoption of the “Pact”:

  1. Cultural Value: the Pact will represent a cultural turning point, highlighting the centrality of environmental issues among global problems.
  2. Consistency and unity: Although it is true that there are many sources at the international level governing the environment, we still lack a document that summarizes the main principles and rights in a concise and unitary way.
  3. Filling a knowledge gap: as a consequence, the Pact will help fill a knowledge gap, allowing all operators to deal with a single document that lists the rights.
  4. The principles and the rights contained in the Pact will be binding and applicable with an unanimous meaning in the various environmental sectors.
  5. The Pact will allow the expansion of its principles in areas of the world where environmental protection has not reached acceptable levels yet.
  6. This will also lead to a virtous ripple effect in the various legal systems, that will aim at providing a similar (or even a higher) level of legal protection than the one ensured by the Pact.
  7. A new challenge for Courts will be to provide the extension of  the “standing to sue” with respect to all these environmental rights.
  8. From a scientific perspective, the Pact will boost environmental studies, by taking also into consideration the interests of people who do not have voice and face (i.e., future generations).
  9. The Pact will be the chance for eventually reflecting and developing new environmental principles.
  10. The Pact will be the starting point for “expanding”, in the long term, some environmental principles (think about prevention and polluter pays principles) to other sectors where intergenerational problems emerge (i.e. economic crises).

 

Pilar García Pachón

Director, Department of Environmental Law, Externado University, Colombia

The approval of the Global Pact for the Environment is an extraordinary opportunity for United Nations to go one step further in the recognition and shaping of international environmental principles. If the Pact is approved, we will have a new normative tool that could be useful to promote definitive transformations in the way in which environmental issues are decided in public and private scenarios.

Furthermore, this Pact could be the foundation of a new strategy to bring civil society, States, trade unions and productive sectors closer together to build greater environmental awareness and, consequently, a real action that achieve conservation, sustainable development and nature protection.

For a country like Colombia, which has extraordinary environmental wealth and an abundance of biodiversity, it’s necessary to put into effect the international environmental principles that the United Nations has recognized. At the national level, we know that Colombia has an extraordinary amount of environmental standards, but a low efficiency.

Therefore, the approval of the Pact could be useful, particularly the incorporation of principle 15, which requires the effectiveness of environmental standards, it would produce a request to environmental authorities and to the National Government to ensure the implementation and real enforcement of orders, prohibitions and normative constraints.

We are sure that the changes that are required to achieve the viability of the planet must be accelerated, therefore, wasting an opportunity like the one generated by the Pact would be going back in the fight for the protection of the global environment.

 

Michael B. Gerrard

Professor, Columbia Law School

What matters most in implementing sound climate policies is domestic politics. Regardless of what international principles a state has endorsed over the years, they will not lead to concrete actions unless the state’s leaders wish to undertake them.  That wish can be formed by the compulsion of law, or by what the leaders believe is in the national interest or in their own political interest.

Law compels state action mostly when it is adopted by the nation’s legislature and there are mechanisms to ensure enforcement. That is why U.S. environmental law has been so strong: Congress enacted binding environmental laws, mostly in the 1970s, including provisions that allowed outsiders to enforce them in court.  The U.S. is now in a terrible situation with a president and Congressional majorities that are hostile to environmental regulation, especially as relates to climate change. The courts have restrained some of the deregulatory measures, but their abilities are limited.

A return to the U.S. tradition of strong environmental action, and the adoption of effective climate policies, depends almost entirely on electoral politics. Thus I think that needs to be the current focus of concerned Americans. The same might be said for the other countries where political support for climate action seems to be wavering, such as Australia, Canada and the U.K. (What is it about the English-speaking countries?) They won’t sign onto a global agreement, and if they do they won’t follow it, without strong domestic political support.

 

John H. Knox

Henry C. Lauerman Professor of International Law, Wake Forest University School of Law

One of the most important gaps that the United Nations could fill is the absence of a globally recognized human right to a healthy environment. More than 100 countries have recognized this right in their national laws it is included in regional agreements, but it is missing from the seminal UN human rights instruments, which were adopted before the modern environmental movement.

Human rights bodies have nevertheless shown that environmental harm interferes with the enjoyment of human rights, including rights to life and health, and that the exercise of human rights, including rights to freedom of expression, public participation, and effective remedies, is vital to robust environmental policy.  Recognition of the right by the General Assembly would integrate this rapidly developing body of law and support stronger measures of implementation.  For example, recognition could be accompanied by efforts to develop a global agreement on rights of information, participation and remedy, along the lines of the Aarhus Convention and the recently concluded Escazú Agreement.

By including the right in its very first article, the draft Global Pact for the Environment presents a useful model.  However, the Global Pact takes a wrong step in its second article, by setting out a duty not only on States and international institutions, but on “every person” to take care of the environment.  Defining individual duties in international human rights instruments should be avoided, because they have often been used by States as excuses to avoid their own obligations to respect, protect and fulfil human rights.

 

Pilar Moraga Sariego

Professor, University of Chile

The signing by the international community of a binding international environmental treaty enshrining the right to live in a healthy environment, as well as the principles of environmental law, would be the expression of an actual and concrete political commitment to the urgency of the current environmental crisis.

From a legal perspective, this would contribute to rendering the environmental regime at the national and international levels more effectively, given that the rapprochement of human rights and the environment is presented as a more adapted response to the type of environmental problems we are currently facing. National legislation and national and regional case law have made progress in this respect, providing substance and content to the questions and answers to the difficulties that arise in this area, for example, with regard to the rights of future generations and the rights of nature.

According to Le Clerq, (2011) this strategy “has the undeniable merit of placing the elevated levels of human suffering that can result from rising temperatures at the center of the debate”, given that “through the international practice of human rights, access to a system of international forums opens up to highly vulnerable groups and individuals who would otherwise have no possibilities of making their voices heard.”

In turn, the enshrinement of the principles of environmental law included in the Pact would make it possible to shed light on domestic rights, and consequently illuminate the work of national case law.

 

Damilola S. Olawuyi

Associate Professor of Law, Hamid Bin Khalifa University College of Law and Public Policy

One of the key issues in international environmental law has been the need to forge greater cooperation between developed countries (“North”) and developing and least developed countries (“South”) in the implementation of multilateral environmental agreements (MEA).

The Global Pact for the Environment (the “Pact”) is a bold and imaginative document that seeks to address North-South contentions, by reinforcing the need for technology transfer, common but differentiated responsibilities and environmental education amongst others. Coming at a time of real need, the Pact provides a timely framework for building an inclusive global rule of law for the environment.

One key gap in the Pact however is its failure to specifically address the question of financing environmental action, a perennially charged issue in North-South dialogue on the environment. Several countries in the Global South are generally not opposed to environmental protection. However, when faced with a choice between addressing endemic poverty, unemployment, disease epidemics and insecurity, environmental action becomes weakened. A needed step forward therefore, for building an effective global partnership on the environment, is for the Pact to textually encourage countries in the North, and development agencies and private actors alike, to foster additional and sustained financial flow to existing international environmental funds, such as the Global Environment Facility, and to national environmental funds in the Global South. Like several existing MEAs, the success and impact of the Pact will to a large extent depend on how much money is available at national levels to tackle the world’s most pressing environmental problems.

 

Nilufer Oral

Faculty of Law, Istanbul Bilgi University; 
Member, United Nations International Law Commission; Member, IUCN World Commission on Environmental Law 

International environmental law has steadily progressed from a set of soft law declarations and principles, most famously adopted in 1972 at the historic United Nations Conference on the Human Environment (Stockholm Conference) and the 1992 United Nations Conference on Environment and Development, into a maze of hard and soft law instruments including broad global framework agreements, declarations, codes, guidelines, regional instruments and national laws. Threaded throughout this pastiche of instruments are certain principles that are intended to guide their implementation. However, these principles developed in differing periods under different varied circumstances resulting in the familiar problem of fragmentation.

Certain of these principles are well accepted and considered to reflect customary international law, such as the prevention principle and the obligation to cooperate. Others, for example, such as human rights and the environment have taken more time to evolve. Likewise, the concept of sustainable development, which was first introduced in 1987 with the Brundtland Commission Report, has since been adopted in various legal instruments at global, regional and national levels, reaching its pivot with the adoption in 2015 of the Sustainable Development Goals. The duty of reparation for environmental damage under international law was most recently affirmed by the International Court of Justice in the Costa Rica v. Nicaragua case. The right of public participation and access to environmental information is found in multiple global and regional instruments and many national laws.

The principles in the Global Pact for the Environment reflect the current state of international environmental law. The Pact would offer a modality of integration of these principles that have evolved over different periods of time and under differing circumstances into a single coherent instrument which would contribute significantly to guiding States and other bodies.

 

Luciano Parejo Alfonso

Administrative Law Professor Emeritus, Carlos III de Madrid University

The merit that justifies the Global Pact for the Environment relies on its aspiration to overcome the typical environmental sectoral approach and its conversion into a binding reference text.

As a first step, it codifies the great cast of general principles, giving them a common content capable of: a) reinforcing the Agenda 2030 holistic perspective adopted by the United Nations in 2015; b) contributing to the climate change objectives of the Paris Agreement; c) helping to achieve a more integrated interpretation and application of specific treaties and international agreements; and d) strengthening environmental national policies.

More significant, it frames and settles those principles into a fundamental right and duty formulated in such terms that deserve additional emphasis. The right is that of any person to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment. And the duty is of every State or international institution, every person, natural or legal, public or private, to take care of the environment, according to their own capabilities. The key is that the content of the right (and its correlative duty) is not directly the environment, but the human life developed in it and within the world it forms part of (which corresponds, in the case of the correlative duty, to the earth’s ecosystem). It is, in short, a real universal subjective right referred to all the relevant dimensions of the environment that enhances the effectiveness of the sectoral norms, and that runs at the same time as the duty to take care of the environment.

As such, the Global Pact relates to a concept of the environment as a global common that concerns to all humankind.

 

Jorge E. Viñuales

Professor of Law and Environmental Policy, University of Cambridge

Broad questions such as whether a Global Pact for the Environment (GPE) would be a useful addition to global environmental governance are best answered not by zooming in and arguing about the details, but by zooming out and addressing the fundamentals.

Fifty years from now, arguments against the GPE will likely look like arguments against the 1966 International Human Rights Covenants, or even the 1948 Universal Declaration on Human Rights: as either politically or personally motivated or, at best, as retrograde. There is room for arguing about the scope and format of an overarching instrument but given the importance of the environmental challenges the world faces we need an instrument such as the GPE.

Adoption of such an instrument would be consistent with past practice. In most other branches of international law, the adoption of an overarching framework required sustained efforts over several decades. One could refer in this regard not only to human rights but also to the Law of the Sea, trade law, international criminal law, or international humanitarian law.

The situation is similar at the domestic level. Countries from all corners of the world have adopted general environmental statutes which, despite their diverging scope, have a transversal application to environmental protection. In many cases, these general statutes came after sectoral ones. I do not see why the same should not occur, here.

The time is ripe for an articulation of clear and shared formulations of the main environmental law principles. Different principles and formulations have been developed and tested at the domestic and international levels since the early 1970s. A GPE would serve to crystallise and consolidate a long-matured process that has slowly but surely earned the trust of most countries and peoples around the world, particularly younger generations.

Moreover, the nature of environmental problems, with their fast-changing pace and sometimes drastic turns, makes the need to fall back on well-settled principles particularly acute. Such principles are not sufficient and cannot compensate for the lack of specifically tailored responses. But tailored responses are but expressions of fundamental stances on the relations between humans and nature, and such fundamental stances should not remain undefined and ambiguous. Excessive ambiguity would lead to inconsistent application and undermine the rule of law.

I am therefore persuaded that the adoption of a GPE is essential.

 

Alex L. Wang

Professor of Law, UCLA School of Law

One issue deserving of greater international attention is environmental harm embedded in trade and cross-border investment. About 22 percent of global CO2 emissions are associated with exported goods. Between 2002 and 2015, upwards of 30 percent of China’s carbon emissions were produced in manufacturing goods consumed elsewhere (primarily, the U.S., Europe, and Japan). Developed nations have not been held directly to account for the carbon generated by their outsized consumption, and public awareness of this transfer of environmental harm to other countries remains low. Meanwhile, China is rapidly expanding its outbound investment and trade with developing countries through its Belt and Road Initiative. This promises to exacerbate global environmental pressures, even as it provides needed infrastructure and bolsters growing economies. Rising Chinese wealth is also leading to rising consumption, often of imported goods.

A pact that improves transparency about such cross-border impacts is essential. Consuming nations should not be wholly responsible for these impacts; producing nations benefit economically and have direct authority over regulation, after all. But a new global treaty can provide a fairer mechanism for allocating responsibility to nations that consume the most and benefit from outbound investment. Such a mechanism would create greater fairness in handling the environmental risks of past, present, and future economic activity. This proposal is not only relevant for climate change. The concepts would also apply to other critical environmental problems – such as habitat and species loss – where consuming nations are not held to account for harms caused in other jurisdictions.

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