Global Pact for the Environment

The Global Pact for the Environment seeks to recognize the rights and duties of citizens and governments towards the Planet. Its approach is to enshrine the fundamental principles of environmental law in a legally binding instrument, thereby remedying the shortcomings of international environmental law. While these principles are already contained in political declarations such as the 1972 Stockholm Declaration and the 1992 Rio Declaration, they currently lack legal force.^[8]

In contrast to these declarations, a Global Pact would be a multilateral treaty endowed with legal force that would enshrine fundamental environmental rights as well as the principles that guide environmental action. Building on the dynamic of the Sustainable Development Goals and the Paris Agreement, a Global Pact would raise the threshold for environmental protection worldwide. It is intended for global adoption. It would complement existing sectoral conventions, such as the Paris Agreement or the Montreal Protocol by enshrining principles that would apply to the Environment as a whole. If adopted, it would be the first international treaty that takes a comprehensive and non-sectorial approach to the environment.^[8]

The Global Pact's methodology to enhance environmental standards is to recognize a "third generation of fundamental rights" – environmental rights. This approach mirrors that of the two international covenants of 1966: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which are generally seen as having enshrined the first two generations of human rights.^[9]

The Global Pact for the Environment was first proposed in 2017 by an international network of more than a hundred experts (professors, judges, lawyers) from forty different countries now known as the "International Group of Experts for the Pact" (IGEP).^[10] The current IGEP chair is Laurent Fabius, President of the French Constitutional Council and former President of COP 21. Its Secretary-General is Yann Aguila, a lawyer at the Paris Bar and President of the Environment Committee of the Club des Juristes, a French legal think tank.^[11]

Notable members of IGEP include:^[11][12]

• Antonio Herman Benjamin, judge at the Superior Court of Justice of Brazil.
• Bruce Ackerman, Sterling professor of law and political science, Yale University.
• Laurence Boisson de Chazournes, professor, University of Geneva.
• David Boyd, professor of law, University of British Columbia, UN Special Rapporteur on Human Rights and the Environment.
• Lord Robert Carnwath, Justice of the Supreme Court of the United Kingdom.
• Parvez Hassan, senior advocate in the Supreme Court of Pakistan.
• Marie Jacobsson, former member of the UN International Law Commission from 2007 to 2016 and special rapporteur.
• Donald Kaniaru, former director of environmental implementation at UNEP.
• Swatanter Kumar, former judge of the Indian Supreme Court, former president of the National Indian Green Court.
• Luc Lavrysen, Dutch Language President of the Belgian Constitutional Court.
• Pilar Moraga Sariego, Professor at the Center for Environmental Law, Faculty of Law, University of Chile.
• Tianbao Qin, Professor, Wuhan University, Secretary-General, Chinese Society for Environmental and Natural Resources Law.
• Nicholas A. Robinson, Professor, Elisabeth Haub School of Law, University of Pace, New York.
• Jorge E. Vinuales, Professor, University of Cambridge.
• Margaret Young, Associate Professor, Faculty of Law, University of Melbourne.

Enshrining fundamental principles of environmental law in a universal binding treaty is however not a novel idea. Environmental lawyers have been calling on States to adopt such a treaty at least since the 1987 Brundtland report, which elaborated a list of "Legal Principles for Environmental Protection and Sustainable Development."^[13] In 1995, the International Union for Conservation of Nature (IUCN) also proposed a draft International Pact on Environment and Development.^[14] In 2015, the Environment Committee of the Club des Juristes likewise proposed the adoption of an international environmental treaty.^[15]

A preliminary draft was conceived by IGEP experts in 2017 to serve as a basis for international talks. The definitive wording of the text is still subject to negotiations.^[16]

The preliminary draft is structured around a preamble and twenty fundamental principles, balanced between rights and duties and supplemented by six articles dealing with final provisions. The text is based on two "source principles", a right and a duty: the right to an ecologically sound environment and the duty to take care of the environment. These substantive and procedural principles are already widely established and accepted in previous environmental declarations. Yet, a Global Pact would elevate these principles from guiding ideas to legally binding, enforceable sources of law for legislators and courts in all UN member states.^[17][18]

Substantive principles include:

• The Prevention Principle (Article 5): necessary measures shall be taken to prevent environmental harm.
• The Precautionary Principle (Article 6): where there is a risk of serious or irreversible damage, lack of scientific certainty shall not be used as a reason to prevent environmental degradation.
• Duty to Repair Environmental Damage (Article 7): necessary measures shall be taken to ensure adequate remediation of environmental damages.
• Polluter-Pays (Article 8): costs for pollution should be borne by their originator.

Procedural principles include:

• Right to Information (Article 9): every person has a right to access environmental information held by public authorities.
• Public Participation (Article 10): every person has the right to participate in the preparation of decisions that may have a significant effect on the environment.
• Access to Environmental Justice (Article 11): States shall ensure the right of effective and affordable remedy to challenge acts that contravene environmental law.

The preliminary draft of the Global Pact proposes innovations such as the official recognition of the role of civil society in protecting the environment. It further includes the principle of non-regression, which prohibits going back on existing levels of environmental protection.

The preliminary draft also provides for a mechanism to monitor the implementation of the Pact to ensure its effectiveness. This mechanism, which consists of a committee of experts, would be a forum for States to exchange experiences and recommendations in light of national best practices.^[18]