The first session of the Ad hoc Open-ended Working Group towards a Global Pact for the Environment convened on Monday, 14 January 2019 at the United Nations Office at Nairobi, Kenya. During the week, delegates considered the report of the United Nations Secretary-General titled “GAPS IN INTERNATIONAL ENVIRONMENTAL LAW AND ENVIRONMENT-RELATED INSTRUMENTS: TOWARDS A GLOBAL PACT FOR THE ENVIRONMENT” (A/73/419). Approximately 288 participants attended the meeting, including government delegates, representatives of international organizations, and civil society.
A Brief History of the Proposal for a Global Pact for the Environment
The conceptual origins of the proposal can be found in a 2015 report by the Environmental Commission of Le Club des Juristes (CDJ), “Increasing the Effectiveness of International Environmental Law: Duties of States, Rights of Individuals.” The CDJ proposed the adoption of a Global Pact for the Environment to serve as a binding, universal “umbrella text” synthesizing the principles outlined in the Rio Declaration on Environment and Development, the Earth Charter, the World Charter for Nature, and other instruments shaping environmental governance. Supporters of the initiative envisage a new international instrument, modelled on the UN’s human rights instruments, creating a third generation of fundamental environmental rights.
The proposal for a Global Pact was taken up in an initiative by the President of the French Constitutional Council, Laurent Fabius, after he presided over the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC COP 21) in 2015 and began to work with Yann Aguila, leader of the CDJ. Fabius has been recently appointed as a United Nations Environment Programme (UNEP) Patron on Environmental Governance. Environmental law experts were invited to hold a high-level meeting in Paris in June 2017 to finalize and launch a draft Pact after a three-month iterative process involving a Group of Experts from some 40 countries, led by members of the International Union for Conservation of Nature (IUCN) Academy of Environmental Law and the IUCN World Commission on Environmental Law. The draft was launched by the CDJ, in the presence of French President Emmanuel Macron, who committed to bringing the initiative to the UNGA.
France convened a “launch summit” for the draft Pact at a side event during the high-level segment of the 72nd session of the UNGA on 19 September 2017. France and other supportive Member States then introduced a draft resolution to the UNGA.
In May 2018 the United Nations General Assembly (UNGA), in resolution 72/277, established an ad hoc open-ended working group (OEWG) to consider a technical and evidence-based report by the United Nations Secretary-General (UNSG) (A/73/419) identifying and assessing possible gaps in IEL (International Environmental Law) and environment-related instruments with a view to strengthening their implementation. The resolution also recommends, if necessary, consideration of the scope, parameters, and feasibility of an international instrument, with a view to making recommendations that may include the convening of an intergovernmental conference to adopt an international instrument, to the UNGA during the first half of 2019.
The resolution of 10 May 2018, “Towards a Global Pact for the Environment,” also called for the appointment of two co-chairs of the OEWG to oversee consultations. The UNGA requested costs to be met through voluntary contributions and that the UNSG establish a special voluntary trust fund to support the process.
The draft resolution was presented by France and sponsored by 71 delegations, the resolution sought to address the challenges posed by environmental degradation in the context of sustainable development. It was adopted by a recorded vote of 143 in favor and five against with seven abstentions. Emphasizing Nairobi’s standing as the environmental capital of the UN, Kenya introduced an amendment that said all substantive sessions, rather than just the initial one, must be held in the Kenyan capital.
Report of the Meeting
The first session was characterized by some as a “stocktaking” opportunity as delegations had their first chance to examine the state of the art in international environmental law (IEL) and environment-related instruments. With relatively little time to prepare recommendations for the UN General Assembly by the end of the first half of 2019, even the most ambitious delegations have observed that whatever package of recommendations emerges will probably, of necessity, fall short of what is objectively needed to completely overhaul the IEL regime, given the current climate for multilateralism and the risks that would accompany any attempt to force a new normative consensus.
On Tuesday afternoon, Stadler Trengove, UN Office of Legal Affairs, announced that, after a suspected terrorist incident in Nairobi, UN Security had temporarily and preventively sealed the UN compound. On Wednesday, Co-Chair Francisco António Duarte Lopes, Permanent Representative of Portugal, invited delegates to observe a minute of silence for the local and international victims of a city center terrorist attack and their families, and in solidarity with the government and people of Kenya. Delegations prefaced their statements with comments of sympathy and solidarity for those killed in the attack.
The meeting was officially opened by one of the Co-Chairs Ms Amal Mudallali on Monday, 14 January 2019 and was addressed by Macharia Kamau, Ministry of Foreign Affairs, Kenya who welcomed delegates. Ms Joyce Msuya, UNEP Acting Executive Director and UN Assistant Secretary-General, invited delegates to engage in frank discussion on which gaps exist in IEL and on the coordinating role of the UN system. She encouraged delegates to include civil society and academia in the process.
After adoption of the agenda the meeting received general statements. On behalf of Group 77 and China Ethiopia recalled the United Nations Conference on Sustainable Development (Rio+20) outcome on strengthening UNEP. On behalf of the group Ethiopia highlighted links between finance, technology transfer, and capacity building, and fully operationalizing IEL and related instruments, and stressed the principles of sovereignty over national resources and common but differentiated responsibilities (CBDR).
On behalf of the African Group, Zambia questioned several dimensions of the UNSG’s report, including that it does not sufficiently account for the role of the Rio and Stockholm Declarations, and suggested that strengthening the role of UNEP could play a central role in improving coordination in IEL.
The United States (US) expressed commitment to engaging in discussions on whether gaps exist in the international environmental system that may need to be addressed, and if so, on actions to address such gaps. Highlighting that the UNSG’s report does not comply with its mandate and is “not fully objective nor an accurate reference text,” the US said many of the perceived “gaps” identified reflect intentional decisions made by states in specific MEAs, and the report is biased towards the option of a global pact.
On its part Argentina highlighted that any gaps and shortcomings in IEL are in implementation, and relate to financing, capacity building, and technology transfer, hinge on political will, and can be addressed through existing institutions.
Cuba underlined the importance of CBDR (Common But Differentiated Responsibilities – one of the 1992 Rio Principles) and cautioned against detrimentally affecting existing work. Cuba indicated that a single instrument dealing with all issues would not be the most consistent way to address a wide range of problems, and called for more coordination across MEAs.
On its part Iran attributed fragmentation in IEL and related instruments to inconsistencies, insufficient resources, unsound policies, inadequate instruments, and politically motivated positions. Iran cautioned against the creation of a comprehensive new instrument without recognizing root causes of gaps in IEL, and called for creativity in reviving existing environmental instruments.
The Russian Federation emphasized that the OEWG should not set up a new framework, as fragmentation is a necessary feature to achieve consensus on environmental matters; that the principle of sovereignty over natural resources should be respected; and that UNEP’s role should not be weakened by parallel structures.
Canada called for the OEWG to take a “pragmatic” approach, underscoring that existing MEAs should not be weakened and that the UN Environment Assembly (UNEA) remains the main environmental body in the UN system.
China stressed the importance of: the principle of CBDR; providing assistance to developing countries; the principle of national sovereignty over natural resources; and the full engagement of developing countries. China said the OEWG’s work should, inter alia: avoid overlaps with existing international instruments; pursue progressive development of IEL; and focus on global issues rather than bilateral or regional issues.
Brazil described the growth and diversification of IEL as a benefit to the international community, rather than a problem, and cautioned that a hasty overhaul of the system could erase important concepts and principles including those universally recognized in the Rio Declaration. Brazil highlighted the need to address insufficient coordination in the UN system and a lack of means of implementation.
India cautioned that the OEWG’s work should not undermine existing instruments and called for a transparent, inclusive, and constructive Member State-led process, taking account of historic responsibilities, equity, justice, and CBDR.
Norway stressed the need to differentiate between gaps within existing MEAs, which must thus be dealt with by those agreements, and those that do not, and called on delegates to take advantage of current political momentum.
Morocco expressed support for harmonizing IEL, underscoring that, in order to safeguard our biosphere, all of IEL’s aspects must support a common vision for the organization of human activity.
Japan suggested that this was a good opportunity to reflect on how the international community has addressed pressing environmental issues through MEAs, and expressed Japans’ particular interest in the governance structure of IEL.
Nigeria proposed that new and omitted principles be consolidated in a pact, and emphasized the importance of climate justice and expanding the rights of those suffering from environmental harm.
South Africa stressed that it will not accept any outcome with the unintended consequence of weakening existing environmental law. South Africa highlighted the need for means of implementation, and said the principles of equity and fair and equitable benefit sharing were not adequately addressed in the UNSG’s report.
New Zealand stressed the importance of maintaining the integrity of existing obligations and commitments.
Australia urged avoiding duplication of existing obligations and ensuring that the outcome does not result in an overall weakening of existing principles.
Cameroon noted the need to discuss other gaps in addition to those identified by the UNSG’s report.
Mexico said the fragmentation of IEL is not necessarily a weakness, but reflects a diversity of environmental problems and associated solutions. Mexico called for strengthening the coordination role of UNEP.
The Democratic Republic of the Congo (DRC) noted inconsistency between IEL and the law on armed conflict.
Mali said it was “high time” for a universal tool for environmental law.
The International Institute for Law and the Environment said the world had entered a new geological epoch, the Anthropocene, and that humanity’s most critical challenge is to create institutions that respond to this.
The International Chamber of Commerce (ICC) suggested it could bring “real-world” experience from the business community to these meetings, and that a pact could provide benefits to businesses by, for example, managing uncertainty.
After general statement the meeting started considering the UN Secretary General Report chapter-by chapter. The 7 chapters that were examined are:
• Gaps concerning principles of international environmental law;
• Gaps relating to existing regulatory regimes;
• Environment-related instruments;
• Gaps relating to the governance structure of international environmental law;
• Gaps relating to the implementation and effectiveness of international environmental law; and
Delegates identified elements missing in the report, questioned the empirical analysis of the report, expressed concerns about the biasness of the report, expressed the difficulty of agreeing on a single globally binding framework, the inability of the report to explore all the root causes of the gaps in IEL, the universal in-applicability of a global IEL system, the effectiveness of a global pact in resolving existing implementation challenges, etc.
Several Parties called for further work to be done to address the gaps and deficiencies in the report. Others like Togo urged examining of other areas of international law that can impede the implementation of IEL, noting the example of technology transfer.
Closure of the Session
On Friday afternoon, the OEWG began its closing session. In a closing statement, NGOs noted their concern on the origin of the process; they noted with concern the fact that the process’s origins was outside the UN system and underlined the legitimate role of civil society participation and collaboration. He said the NGOs would prepare a submission, including material on the case for a framework convention on the “Earth system.”
To conclude the meeting Co-Chair Duarte Lopes delivered an oral summary of the session on behalf of the Co-Chairs. He noted that the discussions had been rich and wide ranging, focusing mainly on the UNSG report on gaps in international environmental law and environment-related instruments. On the issue of the process he noted the general agreement on how to move the process forward in a constructive, transparent and inclusive manner. He also noted the desire to aim at reaching agreement through consensus and the need to bring the process in line with the Stockholm Declaration, the Rio Declaration and the Addis Ababa Action Agenda.
On the Secretary Generals’ report he noted that there are those who view fragmentation and diversity in IEL regime as an asset and not a problem. He also noted the views that some gaps were intentionally created and reflected a compromise between Parties in negotiations. He also noted the idea that called for differentiation between normative, institutional and implementation gaps. The co-chair also noted that there are Parties that think the report exceeded its mandate. He also noted that there are those who think a new global legal system is needed and there are those who are opposed to the idea.
The co-chair also noted that some Parties called for strengthening the role of UNEP and redefining the role of non-state actors as one of the solutions to global environmental governance.
Reported by Dr. Yahya Msangi, Technical Adviser, Sustainable Development, Climate Change and Chemical Safety