Posted by: Frances Lawson
In November 2018, the UN Secretary-General published a report on the hotly anticipated topic of a Global Pact for the Environment. The idea, put succinctly, is for principles of international environmental law, housed at present in the plethora of soft law multilateral environmental agreements, to be brought together in one authoritative, and legally binding, environmental treaty. Put another way, the idea is to give international environmental law some much-needed clout and enforceability.
The initiative is not a new one; following his success in securing agreement at COP21 in Paris, the then French Foreign Minister, Laurent Fabius, was approached by those who had been harbouring the ambition of a new legally binding environmental treaty and asked if he would assist in bringing the idea to life. Monsieur Fabius agreed, his climate change efforts having gifted him an ecological conscience that he himself accepts to not having been born with. Fast forward to 2017, and Monsieur Fabius presided over the drafting and publication by the French association ‘Le Club des Juristes’ of a ‘blue sky’ version of what a new global environmental treaty might look like. The White Paper, as it is referred to, contains 26 Articles, and can be viewed here
President Macron then undertook to present the White Paper and the Global Pact idea to the UN. The idea was sufficiently warmly received for the UN Secretary General to commit to a work programme to explore the idea, commissioning in the first instance a report on the gaps in international environmental law that a Pact could help to plug. Hence the report published in November 2018.
What makes the initiative so exciting is its potential to define environmental law principles that can be relied upon and enforced in both national and international courts and tribunals. These principles – such as the precautionary and the polluter pays principles – are already well-established, particularly in EU law. Yet in terms of international environmental law, they remain the subject of contention and are far from universally accepted. Investment tribunals and others that regularly determine cases with an environmental dimension, typically refuse to follow principles of international environmental law for this very reason. Environmental principles are quite simply handicapped by their absence from any legally binding international treaty.
The relevance of a Global Pact for international climate change is considerable; given the low level of enforceability of the Paris Agreement, binding principles that require States to take care of the environment, including through preventive measures, and that enshrine inter-generational equity, precaution and responsibility for environmental damage would similarly revolutionise the enforceability of climate change law.
There is, however, much work to be done to bring a Global Pact into being, and even more work to ensure it takes form in a way which advances international environmental law rather than keeps it stuck in the realm of legal niceties. The next step, in what is likely to be a process spanning several years at least, is for an Ad hoc Working Group on the Pact set up under the UN to consider the Gaps report and how to take the idea forward. Key questions are the form and nature of a Pact, and the substantive content. The first meeting, in Nairobi, is next week.
There is another reason why the scale of the challenge ahead is not to be underestimated. Whilst there is already much support, including among the business community, for a legally binding environmental treaty, there are equally those that are determined to ensure nothing with real legal effect ever comes into being. This was clearly illustrated last Wednesday at an event hosted by the ICC in Paris. Amongst much enthusiasm and progressive thinking was the powerful voice of a US multinational firm which, in very clever linguistic terms, advocated the very opposite, subtly sowing doubt on the need for a legally binding instrument, stressing the complexity of the task, stating that maybe some gaps in international environmental law are there for good reason, and that maybe ‘soft’ initiatives akin to the ISO and others would provide the necessary ‘flexibility’ as opposed to something with real legal effect. Given the perceived clash between environmental imperatives and economic interests, this will not be a lone voice in the wilderness but just one part of a vociferous chorus against putting environmental law principles into ‘hard law’. If the Pact is to have real effect and ‘added value’, the voice of progressive business is going to need to make its voice heard more than ever before. Otherwise, we may end up with yet another well-intentioned but ultimately unenforceable multilateral environmental agreement to add to the 500+ others that already exist.