• Legal Planet — A global ‘green’ pact?



    “This is not the right versus the left because there is no liberal air or conservative air. We all breathe the same air. There is no liberal water or conservative water. We all drink the same water.”

    – Arnold Schwarzenneger
    Movie star, ex-California governor turned climate campaigner

    THE year 2015 was significant for the Philippines and France. It marked the historic and meaningful visit of Pope Francis to, among others, “see, touch and feel” Tacloban City which was destroyed by Typhoon Yolanda followed by the important visit of then French President Francois Hollande to Manila to launch a call for the global community to support the forthcoming Paris Conference. The conference produced the Paris Agreement on Climate Change wherein 196 countries committed to reducing emissions of greenhouse gases generated by burning fossil fuels that are blamed by scientists for warming the planet. A Draft Global Pact for the Environment which somehow had its “voyage” from Manila to Paris and now to the rest of the world is on track to be a legally binding treaty to protect planet Earth.

    In June 2017, a launch event for the Pact was held in Paris led by the newly elected President of France, Emmanuel Macron and former UN Secretary General Ban Ki-Moon. President Macron announced in his speech during the launch that he will bring the pact as a proposal to the UN General Assembly in September this year. It represents a great opportunity to elevate environmental law at the global level, using the principles as a framework for enhancing international human rights law and strengthening international environmental cooperation.

    Since there is as yet no general or global legal text bringing together the fundamental principles of environmental law, the Pact is an effort towards international recognition of a “third generation” of human rights, building on the UN’s two existing international human rights covenants on civil and political rights and on economic, social and cultural rights adopted in 1966.

    The Pact incorporates 26 short articles many of which are restatements of international environmental law principles that emerged over the years from the 1971 Stockholm UN Conference on the Human Environment and builds on works of other organizations like the IUCN/ICEL Draft International Covenant on Environment and Development.

    Among the provisions of the Pact are the polluter-pays-principle, sustainable development, inter-generational equity, precautionary principle as well as articles on environmental human rights, procedural rights to information, public participation in decision-making and access to justice.

    Actually, the principles and rights mentioned are all recognized in “soft law” instruments like the 1972 Declaration of the UN Stockholm Conference on the Human Environment and the 1992 Rio Declaration on Environment and Development. But of equal importance are the new principles, e.g. protection of the environment vis-à-vis armed conflicts, and the commitment to ecological resilience and non-regression principle which calls on governments to refrain from repealing or weakening environmental laws. If the principle on non-regression is now operating in the US, President Donald Trump would be unable to go back on the Clean Air Act adopted by his predecessor.

    As a “hard law” instrument, the Global Pact for the Environment is expected to become a legally binding international treaty that will lead governments toward achieving conformity with the major principles and review their legislations to conform with the Pact. Unlike the 1972 UN Declaration and the 1992 Rio Declaration mentioned above which only have declaratory or persuasive value, the Pact will be enforceable in national jurisdictions and may have an effect on national legal systems. It would mean that people can bring states to court to have them be made responsible or to compel them to adopt laws that are more protective of the environment. Hopefully, it would even allow civil society to play a monitoring role with respect to governments. An example is a court order in The Netherlands whereby, as an offshoot of a legal action initiated by an NGO, the government was ordered to reduce emissions of greenhouse gases.

    A most interesting comment about the Draft Pact came from philosopher and expert on environmental issues Dominique Bourg from the University of Lausanne. He said: “We continue to proclaim the same principles as 20 or 30 years ago, in other words from another time, which was totally different from the reality of the world today. These objectives apply to a state of the planet that no longer exists……The era of sustainable development is already behind us. We have irreversibly degraded our environment and the consequences of this degradation are going to increasingly make themselves felt…We now need new binding principles based on the reality of the Anthropocene era, i.e. a planet whose functioning has been deeply modified by human activities…..”

    Take as an example the September 2016 Swiss voters’ rejection of a law that would have provided that Switzerland return to an ecological footprint (meaning, not drawing more from the resources of the planet than the planet is capable of producing) for the planet by 2050. If the yes vote had won, it would have imposed a complete change in economic systems and behaviors.

    Be that as it may, there is agreement that the launched Draft Pact is not a new one. Others have tried conversion of the “soft law” declarations into “hard law” to no avail. The success of the 2015 Paris Conference which resulted in the signing of the Paris Agreement on reduction of greenhouse gas emissions has given it a new lease of life. President Trump’s decision to withdraw from the Paris Agreement shows that the legal bases are extremely fragile.

    Coincidentally, the Draft Pact initiative came weeks after President Trump announced that he would pull the US out of the Paris Agreement. To President Trump’s “Make America great again,” French President Macron retorted “Make our planet great again.”

    (The Draft Global Pact for the Environment was formulated by the French legal think tank Club des Juristes in consultation with an international network of experts from 40 countries around the globe.)


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