Global Pact for the Environment - June 2017

23-24 June 2017

Cover of the Pact A new initiative to prepare, introduce, and eventually adopt the “Global Pact for the Environment” is being chaired by Laurent Fabius (President of the Constitutional Council of the French Republic and former President of the Paris Climate Conference). In close cooperation with the IUCN World Commission on Environmental Law (WCEL), and with operational support from the Environment Commission of the Club des Juristes (France’s first think tank) led by Yann Aguila, a drafting committee was convened on Friday, 23 June. Meeting into the night, the 30-member committee drew conclusions, harmonized the principles from a human rights perspective, and finalized the 26 articles of the draft Pact. The resulting text was then publicly presented on Saturday, 24 June during an event at the Sorbonne in the presence of Ban Ki-moon (former UN Secretary-General), Arnold Schwarzenegger (Chair of the R20 – Regions of Climate Action), Laurent Fabius, Zhang Xinsheng (President of IUCN), Justice Antonio Benjamin (Chair of WCEL) and many others. French President Emmanuel Macron was the closing speaker vowing to personally act, on the basis of the preliminary draft, to lay the foundations for its adoption as a new global covenant by the United Nations General Assembly.

IUCN contribution

IUCN’s role in laying foundations for the Pact was kindly acknowledged in its championing of the Draft International Covenant on Environment and Development and setting ambitious priorities in the World Declaration on the Environmental Rule of Law. In a further sign of strong collaboration, Antonio Herman Benjamin (Chair of the IUCN World Commission on Environmental Law) and Chair Emeritus Nicholas A. Robinson were named by Laurent Fabius as Vice-Chairs of the negotiating and drafting committee. Parvez Hassan (Chair Emeritus) spoke on the first day expressing gladness that after years of work by the commission its achievements have now found a new home in the draft Pact. Further representatives of the Commission included Nilufer Oral (Member of the Steering Committee), Christina Voigt (Chair, Climate Change Specialist Group), Alejandro Iza (Head, IUCN Environmental Law Programme), Donald W. Kaniaru (WCEL Honorary Member), Eckard Rehbinder (Prof. Emeritus, Johann Wolfgang Goethe University Frankfurt), Sébastien Mabile (Chair, Law and Environmental Policy Commission of IUCN France), Jan Glazewski (Professor, University of Cape Town) and Laurence Boisson de Chazournes (Professor, University of Geneva) among other prominent WCEL members. Notably, this was the first time that judges have assisted in the preparation of a treaty. Senior judges from around the world – having also played major roles in the creation of the joint project Global Judicial Institute on the Environment – participated, including Lord Robert Carnwath (British Supreme Court), Luc Lavrysen (Belgian Constitutional Court), and Swatanter Kumar (Chairperson of the National Green Tribunal, India). IUCN’s longtime partner, UN Environment, was represented by Arnold Kreilhuber (Head of the International Environmental Law Unit).

Launching the Pact

Meeting on Friday the 23rd, the drafting committee drew conclusions, harmonized the principles from a human rights perspective, and finalized the 26 articles of the draft Pact. The resulting text was then publicly presented on Saturday, 24 June during an event at the Sorbonne in the presence of Ban Ki-moon (former UN Secretary-General), Arnold Schwarzennegger (Chair of the R20 – Regions of Climate Action), Laurent Fabius, and many others. French President Emmanuel Macron was the closing speaker vowing to personally act, on the basis of the preliminary draft, to lay the foundations for its adoption as a new global covenant by the United Nations General Assembly. The Global Pact for the Environment is intended as a “third generation of rights” to join the 1966 United Nations Covenants on Economic, Social, and Cultural Rights and on Civil and Political Rights. It identifies guiding principles and adopts a general, cross-cutting, universal reference instrument constituting the cornerstone of international environmental law. It is an historic initiative that harnesses the momentum of the Paris Climate Agreement, builds upon consensual principles of international environmental law, and brings the foundations of environmental regulation together to take decisive action and transpose fundamental principles into a new binding instrument.

The drafting process

Operated by the Environment Commission of the Club des Juristes, and under the leadership of its President Yann Aguila, five consultations were conducted with replies analyzed and compiled to shape the Pact. In the end, more than 150 experts from 54 countries across five continents were consulted throughout the process. The first consultation introduced the project and asked a number of open-ended questions. Next, the international network of experts moved on to considering the architecture and the drafting approach. During the third consultation examples from various international treaties were presented for drafting an eventual compliance and monitoring mechanism. The experts then turned to the actual wording and content of the various principles to be included. The fifth and final consultation related to a White Paper which describes the origins, the context, and the aim of the Global Pact for the Environment. Arriving well-prepared in Paris, members of the drafting committee were selected in view to representation of the entire network of experts and the diversity of legal systems.

Objective

The Pact springs from the fact that the importance of fundamental principles for the protection of the environment is undeniable. However, the principles have remained essentially embodied in provisions which belong to “soft law” like the Stockholm Declaration, the World Charter for Nature, and the Rio Declaration. In “[a]ffirming the need to adopt a common position and principles that will inspire and guide the efforts of all to protect and preserve the environment”, the Pact is intended to be applicable to States and capable of being relied upon in court at national and international levels. It is also seen as an extension of the 2030 Agenda for Sustainable Development, and accompanying 17 Sustainable Development Goals and 169 indicators, that otherwise lack legal and binding power. Imparting “hard law” teeth to existing commitments, the Global Pact for the Environment is a culmination of a long process of identifying and reinforcing principles of environmental protection that first started with the 1972 Stockholm Declaration. The overall purpose of the initiative is to conclude a specific treaty on the protection of the environment that lays down the principles common to the whole subject matter. Furthermore, the Pact confronts the reality that international environmental law requires greater coherence. The approach overcomes the high levels of fragmentation across the more than 500 international treaties dealing with the environment in one way or another. Instead, it addresses the multitude of multilateral environmental agreements that mainly deal with sectoral issues and specific legal regimes of environmental law; creating a unifying legal document with general ambit and binding value.

Next steps

The strong personal support of Laurent Fabius and Emmanuel Macron amplifies the decades-long commitment of the environmental law community to fundamental principles for governing the conservation and sustainable use of nature (See Annex). All supporters are sober to the reality that the preliminary draft is anything but definite. It stands now only as a working paper, open and incomplete, meant to be edited, completed and developed, within the frame of the United Nations. The Global Pact for the Environment has already had remarkable success that bodes well for its potential to solidify environmental rights around the world. Justice Antonio Benjamin (Chair of the IUCN World Commission on Environmental Law) was quoted in this regard in the newspaper Le Monde: "I do not know if President Macron has measured the impact of his commitment, but the announcement he made is incredible. Usually, reflection on an international treaty spreads in a diffuse, fragmented way. There we are witnessing a double historical moment. We have never before seen in environmental law a treaty co-written by the judges, and a treaty endorsed the next day by the president of a major country. The country that gave us the declaration of human rights and the civil code is reassigning an international place in the world of ideas and laws."

ANNEX

Background to fundamental environmental law principles

International action

Rio Declaration on Environment and Development (1992)
The declaration includes 27 articles regrouping the fundamental principles of international environmental law through an anthropocentric approach. It brings together existing principles and provides new ones including the precautionary principle and the polluter pays principle. It is not formally binding, but many of the principles have been incorporated into later instruments showing the juridical weight and coordinating virtues of the global text.
World Charter for Nature (1982)
Adopted and solemnly proclaimed by the United Nations General Assembly, the Charter provides general principles aimed at reinforcing respect for nature and essential processes. Although a non-binding document, it indicates “fundamental principles of conservation by which all human conduct affecting nature is to be guided and judged”.
Stockholm Declaration (1972)
The Declaration and Action Program of the UN Conference on the Human Environment recognized the preoccupying status of the planet setting out 26 articles with fundamental principles to govern environmental management and guide international action. Even if non-binding, this was the first time that a universal instrument proclaimed the importance of protecting and restoring the environment.

Civil society initiatives

IUCN World Declaration on the Environmental Rule of Law (2016)
This is a non-binding document proclaiming “general and emerging substantive principles for the promotion and attainment of environmental justice with the support of environmental law”. It includes the principles of non-regression, public participation and equity, as well as in dubio pro natura, the right to a healthy environment, and the ecological functions of property.
Draft International Covenant on Environment and Development (2015)
This draft umbrella agreement has been updated and revise four times since it was first prepared in 1995 to bring form and function to the World Charter for Nature and Rio Principles. It includes an affirmation of the fundamental principles of environmental law, including the principles of non-regression, common but differentiated responsibilities, and the precautionary principle. It takes the approach of addressing the sectoral aspects of environmental protection in one single instrument with specific obligations related to various protection regimes at national, regional and international levels.
Oslo Principles on Global Obligations for Climate Change (2015)
The principles constitute an affirmation of the structuring principles of environmental law by seeking to identify and define legal obligations in the area of climate change and to overcome the relatively abstract character.
The Earth Charter (2000)
An international declaration of values and fundamental principles for ecological integrity, including the prevention principle, for all of society.
Our Common Future “The Brundtland Report” (1987)
Included in its report, the expert group of the World Commission on Environment and Development adopted a “Summary of Proposed Legal Principles for Environmental Protection and Sustainable Development”. The collection is set out in a series of principles including fundamental human rights and states’ obligations concerning the environment, as well as the prevention principle and the obligation of prior informed consent or to undertake environmental impact assessments.