What is the Global Pact for the Environment (the Pact)?
The treaty is structured around a fundamental right and a fundamental duty. The first article proposes the first ever binding formulation, at a global level, of the right of “every person […] to live in an ecologically sound environment”.
The second article establishes a duty of care for the environment on a broad category of duty-bearers, including states, international institutions, individuals, and public and private entities.
These two pillars must be implemented in a normative context that is laid in the additional 24 articles of the draft text. Some normative principles — such as prevention, cooperation, intergenerational equity, precaution, polluter-pays or public participation — are well known in international law.
Others have been recognised only recently, such as non-regression, which prevents backtracking in environmental ambition, and recognition of the role of non-state actors and subnational entities. Yet others, such as resilience, are truly ground-breaking in law.
How could scholars from other domains contribute to this initiative?
Any law with a substantial bearing on the environment should be considered as law for environmental protection. For example, laws on trade, investment, intellectual property or human rights, to name some areas, are absolutely central to environmental protection, whether or not they explicitly refer to it.
The goals pursued by this initiative should therefore be embraced by those working in these and other areas of law. Reform of areas such as investment or trade law, for example, would be extremely important to enable the rights, duties and principles of the Pact.
The formal statement of these rights, duties and principles in our initiative can contribute to reform in other areas.
How does the Pact relate to the Sustainable Development Goals (SDGs)? What else can it bring?
However, in time, the SDGs and other similar guidelines will probably be perceived as instruments to implement the binding norms of the Pact instead.
An analogous shift occurred, for example, with human rights around the relations between the two 1966 International Covenants and the 1993 Vienna Declaration and Programme of Action — a major initiative.
In the 1990s, the Vienna Programme was widely seen as the legal keystone for human rights. With time, it has become clear that the Covenants remain the bedrock whereas the Vienna Programme is an implementation instrument.
However unintuitive for an observer today, this is also likely to occur with the Pact, if adopted; both the Pact and the SDGs are key, but without a Pact, environmental protection would have no bedrock.
Besides the possibility for litigation regarding environmental damages, in what other ways could the Pact contribute to sustainability?
The Pact is a compass defining a direction by means of converging binding principles. Such principles should be used first and foremost as legal parameters to design policies, both domestic and international, that prevent further environmental harm.
The principles can provide a solid legal basis for those within the government apparatus, whether legislators, courts or administrations, to undertake environmental action, such as green deals to transform the energy, transportation, building and agricultural sectors; terrestrial and marine protected areas; subsidies reforms to eliminate overfishing and fossil-fuel distortions; measures to tackle consumption-driven environmental degradation and phasing-out plastic packaging in the food industry, and many others.
The Pact also includes the rights of access to environmental information, justice and public participation in environmental decision-making, which are not yet included in any binding instrument with global scope. These rights would allow civil society to more strongly scrutinise the State and private activities.
The full interview was published in Nature Sustainability on 10 June 2021.