Towards a high-level Political Declaration – A search for building blocks
Open rules leave it entirely to courts how to interpret and apply rules. A combination of general and specific rules would be most effective. Implement the suggestions by UNEP, the Special Rapporteurs and the Global Pact. Clear and equitable rules on compensation/remediation will contribute to acceptance of clear and pertinent environmental obligations and compliance with such rules. Clear obligations of States and enterprises would enable (re)insurers, accountants and credit rating agents to assess their compliance.
The Global Pact for the Environment (hereinafter the Global Pact) set in motion an important development: to “discuss possible options to address possible gaps in international environmental law and environment-related instruments” (UNGA A/RES/72/277 and about the Global Pact, see International Environmental Law-making and Diplomacy Review 2019, p. 116). Resolution 73/333 aims at a high-level Political Declaration.
The importance of a safe, clean, healthy and sustainable environment is universally acknowledged. Human activities are the main reason why the environment is in jeopardy. A few thoughts for consideration.
1. In spite of many changes for the better, a lot more must still be done. What are the obstacles? Lack of enforcement, giving insufficient weight to the environment when balancing diverging interests? Lack of, or unclear rules? Over-cautious courts, courts leaning towards economic development, or granting a wide margin of appreciation to governments?
Almost certainly, the answers will diverge around the globe, also depending on the issue in point. The Declaration should call for an inventory of the obstacles. A better understanding of the obstacles could contribute to crafting the most effective actions to stem the tide.
2. Avoid unnecessary fragmentation. The key features of “the law” have a lot in common; that goes for international, human rights, environmental, constitutional and liability law. Why not a focus on all relevant domains of the law?
There is a not insignificant overlap between the most urgent issues of our time: climate change, environmental degradation, loss of biodiversity and the eradication of poverty.
Currently, many experts and international institutions are working on one of these realms of the law. They do a fantastic job. Even more could be achieved, probably at lower cost and with greater efficiency, if they would join forces. It would make the law and enforcement more effective.
Hence, a call for a more over-arching approach to come to grips with the urgent demands of our time would be welcome.
3. It is very important to develop and adopt general rules such as the Global Pact, and to discern possible gaps. Such rules enable courts to tailor the law to the case in point. In many instances such an interpretation will not beg questions. In new settings and in the context of the global issues the interpretation poses challenges.
The flip side of open rules is that the international community, or the legislator, leave it entirely to courts how to interpret and apply the rules. That unavoidably means significant differences between countries; differences that cannot necessarily be justified.
A combination of general and more specific rules, as in the realm of climate change, biodiversity, deforestation and the use or discharge of plastic, would be most effective. Such rules should determine the obligations of key players, be it governments or enterprises. They would assist key players to comply with their obligations, and to assess whether they comply; they would serve as guidance for courts how to interpret the law. The Oslo Principles and the Principles on Climate Obligations of Enterprises (EP) may serve as an example of specific “rules”.
Because most human activities have an adverse impact on the environment a commentary explaining how to use the “rules” in specific situations would be welcome (such as John Knox’ Framework Principles, OHCHR | Framework Principles on Human Rights and the Environment, as well as John Knox and David Boyd’s other reports OHCHR | Good practices on the right to a healthy environment). Promoting implementation of their submissions into legal norms, either in international, regional, or domestic legal instruments, would be of significant importance.
If it would be impossible, or overly time-consuming, to reach global agreement on specific rules, the international community, or regional organisations might consider drafting guidelines, preferably as concrete as possible.
Summarising: promote a combination of general and more specific rules; implement the suggestions by UNEP, the Special Rapporteurs and the Global Pact.
4. Polluting a river, or emitting dangerous substances is in many (legal) respects different compared to global issues, such as emitting GHGs. These activities have in common that they cause, or contribute to environmental damage, which does not necessarily mean that they should be treated on the same footing.
The differences matter in discerning the relevant obligations (see under 3 above) and to determine (the scope of) liability/compensation/remediation. Should each damage to the environment give rise to a claim, or only if the activity was wrongful (violated an obligation)? How far should liability be stretched: restoration, or should it also entail compensation for ecological loss, as in case of damage to coral reefs if they cannot be restored? Should State X, or an enterprise in country X, be liable for environmental degradation in the nearby vicinity, all degradations in State X, or worldwide?
If one would be inclined to opt for far-reaching liability, also concerning the global issues such as climate change, one should bear in mind that:
there are limits to the capacity to bear losses, in particular if enterprises are the perpetrators;
extensive liability for environmental losses begs the question: and what about liability for other losses? Seeing the magnitude of present and future losses in the context of the global issues and the often limited capacity to bear losses of single perpetrators, the question obtrudes itself whether there is a sufficient justification to prioritise environmental losses over losses suffered by vulnerable people in vulnerable countries and these countries themselves, the costs of adaptation and the losses that will be suffered by the next generation(s). Being generous to all these victims will open the floodgates; courts may even feel tempted to render compensation awards to victims in affluent countries or these countries themselves. That would tap the financial means of many States and enterprises. Hence, in that scenario the environment, vulnerable people and countries, as well as future generations will often be bereft of compensation.
With the exception of fully-fledged liability towards affluent countries and people, there is no self-explanatory answer to the question of which compensation would be equitable. Courts would benefit from at least some guidance; so would potential perpetrators.
Clear and equitable rules on compensation/remediation will contribute to acceptance of clear and pertinent environmental obligations and compliance with such rules. The combination of uncertainty about “the rules of the game” and the financial consequences if they are violated, make it too easy to take a sit-and-wait position; at least that is what those at the wheel (want to) believe.
To summarise: the drafters of the Declaration may consider calling for more elaborate rules (obligations) of key players, or guidance on the most pressing issues.
5. Compliance and enforcement are crucial to avoid environmental degradation. Compliance presupposes clear rules (see under 3 and 4). Optimal enforcement presupposes that courts are equipped with appropriate remedies.
It might be important to explore whether the currently available remedies suffice, or whether additional remedies are required. In the latter scenario, they should be put in place.
6. Specialised courts, such as the Green Tribunal of India and the Land and Environment Court of New South Wales (Australia) should be considered globally.
7. Emphasise the role of the corporate world. “Businesses have a critical role to play” to achieve the SDGs, as the UN Global Compact put it (p. 4). Their impact on the environment goes way beyond their own activities. It includes their suppliers, products and services. By including products and services part of the environmental footprint of consumers can be influenced.
A lot would be gained if clear and pertinent rules as to these issues would be formulated (see for instance EP principles 10-12, and 8-20).
8. Promote a more active role of (re)insurers, accountants and credit rating agents. They could majorly contribute to a healthier environment if they would have a better understanding of the obligations of their insureds, and those they have to audit or rate. Clear obligations of States and enterprises would enable (re)insurers, accountants and credit rating agents to assess their compliance (see EP Principles 45-47).
In a recent and very powerful Pledge for Nature, world leaders commit to
“re-double our efforts to end traditional silo thinking and to address the interrelated and interdependent challenges of biodiversity loss, land, freshwater and ocean degradation, deforestation, desertification, pollution and climate change in an integrated and coherent way, ensuring accountability and robust and effective review mechanisms”
Many of the suggestions enumerated above are in line with the solemn Pledge for Nature, the Global Pact, submissions by UNEP, UN Special Rapporteurs, and the draft building blocks of a political declaration (Implementation of General Assembly resolution 73/333, entitled “Follow-up to the report of the ad hoc open-ended working group established pursuant to General Assembly resolution 72/277” | Environment Assembly).
Indeed: time for swift and bold action has come. The United Nations and UNEP can play a decisive role to achieve this goal.