Paris, France: Saturday June 24 saw me getting up extra early. And by extra early, I mean I looked like a cast member of the Walking Dead as I rolled out of bed. Why would I inflict this pain on myself on a supposed day off? There was good reason.
In an auditorium at the oldest university of Paris, there gathered politicians such as the Mayor of the city, Anne Hidalgo, the French Minister of the Environment and former activist, Nicolas Hulot, legal experts, international environmental leaders and last but not least, former movie star turned climate activist, Arnold Schwarzenegger.
This high-profile crowd was brought together to present to the audience and President Macron a draft proposal for an innovative and legally binding pact aimed at securing a clean and healthy environment all over the world. Following the withdrawal of President Trump from the Paris Agreement and the degrading state of the planet worldwide, this was definitely an event I could not miss.
But before I tell you all about this new pact, let’s put things into perspective…
International environmental law: Little ambition and many loopholes
While the whole world applauded the Paris Climate Agreement adopted in December 2015 which calls signatories to hold global warming well below two degrees celsius, modern international law remains fragmented in a dozen non-binding thematic conventions covering specific aspects such as the 1992 UN Conference on Environment and Development in Rio de Janeiro.
The Paris Agreement itself is not even binding and provides no mechanism to force a country to set targets by a specific date nor any enforcement if a set target is not met. This is because currently, no organization exists that is qualified to implement and monitor international environmental law and act on potential breaches, which leaves commitments and provisions developed under the framework of international environmental law more than theoretical.
Indeed, while human rights have the International Criminal Court in The Hague, Netherlands where trials for genocide and crimes against humanity are commonplace, crimes against the environment (a.k.a. ecocide, a concept that has only recently been acknowledged) have no similarly competent authority, leaving legal practitioners specialized in this field working almost for nothing (no offence intended; it’s just that I’m one of them!).
The Global Environment Pact
That’s where the Global Pact for the Environment lies. Drafted by over 50 judges, lawyers and law experts from Brazil, Argentina, Canada, the United States, India, Pakistan, China, Russia, Cameroon and the EU, the text aims at completing the two legally binding international pacts that were adopted by the UN in 1966, covering respectively civil and political rights and economical, social and cultural rights. With this one, former French Prime Minister Laurent Fabius, one of the instigators of the text says “the idea is to create a third, for a third generation of rights, environmental rights”.
The draft contains 26 articles providing the right to an ecologically sound environment, the duty to take care of the environment for every state or international institution and every person, reparations to be made in case of a breach and introduces the “polluter pays” principle, according to which pollution and other environmental degradation is borne by its originator. It also provides access to environmental justice and education, concepts that are often underestimated in international environmental law and treaties.
Following the presentation of the goals and articles of the pact and the intervention of several high profile environmental actors throughout the day, the text was eventually handed over to President Macron who pledged “to act” and promised to back it as soon as next September at the UN General Assembly in New York to turn it into an international treaty.
Let the hard work begin.
Optimistic innovation or just plain unrealistic?
So, how realistic is this pact really and what is the scope of the law when it comes to protecting the planet?
Attending the event, I was expecting another “Let’s congratulate ourselves on our non existing achievements and talk about the future for hours…” kind of day. And I wasn’t totally wrong, which is pretty ironic since Laurent Fabius opened the conference by saying “Less talk, more action”.
Interventions on attendees’ recent actions were long and the importance of “collaboration” between countries and environmental organizations was probably mentioned 20 times. Yet, I was pleasantly surprised by the ambition of the drafters to make the pact legally binding. As previously mentioned, this is a total innovation in the world of international environmental law and if it were to actually happen, it would open the door to possibility of setting up a qualified institution to deal with the implementation, review and potential legal consequences of environmental treaties and commitments at the global level.
However, this seems highly unlikely to happen in the near future, or at least not quickly enough for some (me). Considering the urgency of the situation we’re in and the slowness of international processes, another text adding up to the pile of already existing and under-implemented ones seems symbolic than anything else at a time when what we need are new and binding principles that take into account the reality of the Anthropocene, not just the right to a “clean and healthy environment”.
In this context, it would be easy to dismiss the usefulness of environmental law because of its complexity and its flaws but it would be a mistake. Law, in its current form or even better, an improved version, has an important role to play in the fight against environmental crises and may in some cases be the last safeguard available. In India for instance, a citizen called M.C Metha filed a suit to save the Taj Mahal from decay caused by industrial air pollution and eventually won when the Supreme Court ordered more than 600 industries to meet environmental regulations.
Last year in the United States, a group of kids put together a case suing the government on actions causing climate change and, against all odds, won the right to a trial. The case generated similar actions around the world.
Could the solution lie somewhere between big international environmental statements, mainly symbolic but mandatory, to create momentum and concrete legal actions at the national level? I strongly believe so.