Earth Negotiations Bulletin (ENB)
Volume 35 Number 2 | Friday, 22 March 2019
Summary of the Second Substantive Session of the Ad Hoc Open Ended Working Group towards a Global Pact for the Environment
18-20 March 2019 | Nairobi, Kenya
The second substantive session of the Ad Hoc Open-ended Working Group (OEWG) established by the United Nations General Assembly (UNGA) resolution 72/277 (“Towards a Global Pact for the Environment”) convened from 18-20 March 2019 at the United Nations Office at Nairobi, Kenya. Nearly 300 participants, including delegates, representatives of international organizations and civil society were invited to engage in a “results-oriented” discussion that is expected to lead to recommendations to the UNGA on options to respond to possible “gaps” in international environmental law (IEL) and environment-related instruments.
Drawing on a summary of their deliberations at the first substantive session held in January 2019, circulated during the intersessional period by the Co-Chairs, Francisco António Duarte Lopes (Portugal) and Amal Mudallali (Lebanon), and on submissions contributed during the intersessional period by a number of delegations, participants were guided in their deliberations by four carefully crafted questions designed to form a bridge from a preliminary “stocktaking” exercise in January to a process of formulating responses and possible design options.
Facilitated by informal sessions, the second session of the OEWG was marked by a shift from an early focus tightly framed by the UN Secretary-General’s (UNSG) report on “Gaps in international environmental law and environment-related instruments: towards a global pact for the environment” (A/73/419) to a more expansive and delegate-led series of questions and responses, including suggestions on the form and content of options, ranging from legally-binding to non-legally-binding instruments, a high-level declaration or other UNGA outcome that might capture and collate the international community’s current ambition to renovate the international environmental law system and environment-related instruments. The questions invited delegates to consider options to address gaps or challenges in principles, governance, implementation, and specific regulatory regimes of environment-related instruments.
While the generative question of whether the world is ready for a legally binding global pact for the environment, as championed by France, remained on the table, the real impact of the French Government’s initiative—for now—has been to unleash what is widely regarded as a necessary re-examination of the defining gap of our times, namely the gap between the stated promise and ambition of the international environmental law regime and its impact or “fitness for purpose” at the dawn of the Anthropocene. There was a clear expectation at the end of the second session that delegations were prepared to receive a Co-Chairs’ compilation of draft elements for “draft recommendations” in April with a clear intention to embark on an intensive negotiating process based on this draft at the third substantive and final session in May 2019.
Elements of these “draft recommendations” will address, inter alia:
- a broad understanding of gaps in IEL, and whether these are lacunae, deficiencies, or challenges;
- principles, their interpretation, and the consistency of their application;
- options for a new instrument and its legally-binding or non-binding nature, including a high-level declaration and/or an UNGA compendium document on IEL principles;
- governance and enhancing cooperation, synergies, and coordination of existing multilateral environmental agreements (MEAs), scientific regimes, and system-wide mainstreaming of the environment;
- strengthening and re-visiting the role of the UN Environment Programme (UNEP), the UN Environment Assembly (UNEA), and other bodies charged with enhancing the impact and coordination of elements within the existing regime of IEL; and
- options to address the implementation gap caused by a lack of capacity building, finance, technology, and political will.
A Brief History of the Ad hoc Open-ended Working Group and the Proposal for a Global Pact for the Environment
In May 2018 the UNGA, in resolution 72/277, established an ad hoc open-ended working group to consider a technical and evidence-based report by the UNSG (A/73/419) identifying and assessing possible gaps in IEL and environment-related instruments with a view to strengthening their implementation. The resolution also recommends, if necessary, consideration of the scope, parameters, and feasibility of an international instrument, with a view to making recommendations that may include the convening of an intergovernmental conference to adopt an international instrument to the UNGA during the first half of 2019.
The resolution of 10 May 2018, “Towards a Global Pact for the Environment,” also called for the appointment of two Co-Chairs of the OEWG to oversee consultations. The UNGA requested costs to be met through voluntary contributions and that the UNSG establish a special voluntary trust fund to support the process.
Presented by France and sponsored by 71 delegations, the resolution sought to address the challenges posed by environmental degradation in the context of sustainable development. It was adopted by a recorded vote of 143 in favor and five against with seven abstentions. Emphasizing Nairobi’s standing as the environmental capital of the UN, Kenya introduced an amendment that said all substantive sessions, rather than just the initial one, must be held in the Kenyan capital.
Origins of the Process
The conceptual origins of the proposal for a global pact can be found in a 2015 report by the Environmental Commission of Le Club des Juristes (CDJ), “Increasing the Effectiveness of International Environmental Law: Duties of States, Rights of Individuals.” The CDJ proposed the adoption of a global pact for the environment to serve as a binding, universal “umbrella text” synthesizing the principles outlined in the Rio Declaration on Environment and Development, the Earth Charter, the World Charter for Nature, and other instruments shaping environmental governance. Supporters of the initiative envisage a new international instrument, modelled on the UN’s human rights instruments, creating a third generation of fundamental environmental rights.
The proposal for a global pact was taken up in an initiative by the President of the French Constitutional Council, Laurent Fabius, after he presided over the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change in 2015 and began to work with Yann Aguila, leader of the CDJ. Fabius has been recently appointed as a UNEP Patron on Environmental Governance. Environmental law experts were invited to hold a high-level meeting in Paris in June 2017 to finalize and launch a draft Pact after a three-month iterative process involving a Group of Experts from some 40 countries, led by members of the International Union for Conservation of Nature (IUCN) Academy of Environmental Law and the IUCN World Commission on Environmental Law. The draft was launched by the CDJ, in the presence of French President Emmanuel Macron, who committed to bringing the initiative to the UNGA.
France convened a “launch summit” for the draft Pact at a side event during the high-level segment of the 72nd session of the UNGA on 19 September 2017. France and other supportive Member States then brought forward a draft resolution to the UNGA.
The OEWG convened its organizational session from 5-7 September 2018 at UN Headquarters in New York (A/AC.289/2). The Co-Chairs of the OEWG, Duarte Lopes and Mudallali, were appointed. The OEWG agreed the dates for its first substantive session. Dates for two additional sessions were agreed for March and May 2019, and were expected to take place “unless otherwise decided” by the OEWG.
In line with UNGA resolution 72/277, in December 2018 Elizabeth Maruma Mrema, UNEP, announced the release of the UNSG’s report entitled “Gaps in international environmental law and environment-related instruments: towards a global pact for the environment” (A/73/419). This technical and evidence-based report reviews and analyzes the corpus of IEL and environment-related instruments as well as the governance structure and implementation of IEL, identifying gaps and deficiencies.
First Substantive Session of the OEWG
The first substantive session of the OEWG convened from 14-18 January 2019 in Nairobi, Kenya. During the week-long session, delegates considered the UNSG’s report. The first substantive session was characterized by some as a “stocktaking” opportunity as delegations had their first chance to examine the state of the art in IEL and environment-related instruments. With relatively little time to prepare recommendations for the UNGA by the end of the first half of 2019, even the most ambitious delegations observed that whatever package of recommendations emerges will probably, of necessity, fall short of what is objectively needed to completely overhaul the IEL regime, given the current climate for multilateralism and the risks that would accompany any attempt to force a new normative consensus.
Report of the Meeting
On Monday morning, 18 March, Co-Chair Mudallali opened the meeting. Joyce Msuya, Acting Executive Director, UNEP, welcomed delegates and invited them to observe a moment of silence for those lost in the Ethiopian Airlines disaster and in the Christchurch mosque shooting in New Zealand. Msuya recalled the OEWG’s mandate and plans for just one more substantive meeting in May before the process reports to the UNGA. She called for meaningful and substantive deliberations and consensus-based recommendations.
Co-Chair Mudallali recalled the OEWG’s rich and wide-ranging deliberations on the UNSG’s report (A/73/419) at its first substantive session in January and called for discussion to move forward on inputs submitted by delegations during the intersessional period. She noted that there would be no attempt to pre-empt discussions on an understanding of gaps.
Co-Chair Duarte Lopes called on delegates to support a results-oriented discussion.
Delegations proceeded to adopt the provisional agenda and programme of work (A/AC/289/4), as agreed at the first substantive session.
Financing of the activities of the Ad Hoc Open-ended Working Group
On financing of the activities of the ad hoc open-ended working group, Elizabeth Mrema, UNEP, said that the two trust funds established by paragraph 10 of UNGA resolution 72/277 have received a total of USD 1.7 million thus far. She thanked donors such as France, Germany, Portugal, and the European Union (EU) for their contributions, but cautioned that financial projections suggest a funding gap, particularly in regards to UNEP staffing needs. In this regard, she noted that the Co-Chairs have communicated with all Member States to ensure full compliance with UNGA resolution 72/277.
In answer to a question from the US, Mrema said funding projections were based on a five-day third substantive session in May, which would be adjusted if the OEWG decides to meet for a shorter time.
Discussion of possible options to address possible gaps in international environmental law and environment-related instruments
Co-Chair Duarte Lopes recalled the guiding questions circulated by the Co-Chairs prior to the session, emphasizing that by asking these questions the Co-Chairs do not mean to suggest that an agreement exists on the existence of gaps, the nature of those gaps, and on the need or opportunity to address them. He proposed that following general remarks, two successive breakout groups would be convened in an informal setting, each addressing two of the guiding questions.
The Co-Chairs’ guiding questions were:
- What options can be considered to address the possible gaps or challenges related to principles of IEL, and what would be the objective and methodologies for such options?
- What options can be considered to address possible gaps related to the governance structure of IEL, including coordination, mutual support, and risks of incoherence?
- What options can be considered to address possible gaps or challenges related to the implementation of existing rules and principles of IEL?
- What options can be considered to address possible gaps related to specific regulatory regimes or environment-related instruments with a view to strengthening the implementation of IEL?
On the Co-Chairs’ proposed guiding questions, the US reported that she was in a quandary and noted that this was a difficult paradigm because options would depend on the identification of gaps. She called on delegations to “slow down,” focus on gaps, and consider options at the third substantive session once views had coalesced.
Egypt noted that he did not agree that a comprehensive and unifying instrument would necessarily strengthen implementation, and underlined the risk of re-opening or redesigning existing principles.
Belize, for the Alliance of Small Island States (AOSIS), with China, Switzerland, Honduras, and Nicaragua, stressed the need to stay true to the UNGA mandate.
Brazil said the expansion and diversification of IEL was a “bonus, rather than a problem” for the international community, and said the OEWG should focus on the operational aspects of IEL.
Chile called for IEL to be broached in a wide-ranging discussion on norms, institutions, and implementation, and called for an analysis of the effects of a treaty on IEL.
The US, EU, AOSIS, Mexico, Guyana, Honduras, Bolivia, and China emphasized that the process should be inclusive. NGOs called for the meaningful participation of civil society, including indigenous peoples and local communities.
The EU said the OEWG’s recommendations should include the adoption of an instrument within a certain timeline, where it could be either an instrument approved by the UNGA, a high-level declaration, a legally binding instrument, or some other option. New Zealand said the OEWG should not be too invested in any particular outcome.
Belize, for AOSIS, said it remained open to convening an intergovernmental conference to adopt an instrument.
Morocco noted support for a global pact. Mexico said a pact should be flexible in its form and legal nature, should bring together and harmonize all principles of IEL, link with the 2030 Agenda, and incorporate means of implementation and strengthen relevant UN bodies.
Cameroon said “candid” and “constructive” discussions could lead to a consensus on a legally binding document. Nigeria supported a global pact, saying it should be transparent and inclusive, taking into account national circumstances. Switzerland said the OEWG should produce a broad spectrum of options. Burkina Faso called for delegates to be “candid” when stating whether a pact is possible.
Venezuela said that fragmentation and silos in IEL do not justify a legally binding instrument, noting, with Brazil, that diversity in IEL is positive.
Russia stressed that existing international legal instruments are the result of compromises among states, and that the key task is to implement existing instruments, ensure financing for all countries that need it, and fill specific gaps such as the problem of ocean microplastics.
Argentina stressed that there are no gaps in international environmental law, since all situations relating to environmental issues can be resolved by implementing existing law. Morocco said gaps exist.
The Federated States of Micronesia (FSM), with Canada, noted the recent publication of the First Global Report on Environmental Rule of Law. He said gaps exist in IEL that undermine their implementation and disproportionately impact small island developing states. Australia, Ecuador, India, the Philippines, and Kenya said Member States should first arrive at a shared view of what constitutes a gap, with Australia stressing the need to ensure that any outcome does not duplicate the work of existing MEAs nor result in an overall weakening of principles.
New Zealand stated that while it is essential to settle on what is or is not a gap before discussing possible options, both may have to be examined together considering that there is no agreement on this question.
Malaysia said the process should consider emerging issues such as marine plastic litter, which was addressed at UNEA-4. Canada noted that experts involved in government-wide domestic consultations noted the existence of some gaps in IEL.
The EU, AOSIS, Kenya, Bolivia, Honduras, Switzerland, Nigeria, Nicaragua, the Philippines, Cuba, Malaysia, and Guyana urged against undermining existing agreements. The Philippines and Cuba cautioned against renegotiating existing agreements.
Argentina, Bolivia, Nicaragua, Burkina Faso, Ecuador, Canada, and Cuba underscored the fundamental challenge of implementation of existing agreements.
The Philippines said there is a common set of principles underlying specific MEAs, found in the Rio Declaration and MEA preambles. Sri Lanka highlighted the principles of best available technology, best environmental practice, accountability, transparency, and cross-border responsibility. Russia stressed the principle of sovereignty of states over natural resources. Sudan, for the League of Arab States, said any outcome document should reflect the principles of national sovereignty, and that it should not impose constraints on international trade.
Senegal stressed the need for technology transfer, education and training, and, with Malaysia, Saudi Arabia, Honduras, Nicaragua, Bolivia, and the League of Arab States, the principle of common but differentiated responsibilities (CBDR). Costa Rica underlined her country’s commitment to the founding principle that all people have the right “to enjoy and grow” within a healthy and ecologically balanced environment.
Belize, for AOSIS, called for the special circumstances of small island developing states to be recognized across all MEAs.
Saudi Arabia pointed to the need for more cooperation between MEAs and for strengthening technical and financial support to ensure Member States are able to meet national commitments.
Nigeria, Switzerland, Mexico, and the Russian Federation called for strengthening UNEP.
Colombia recalled lessons from the first substantive session, including a widespread recognition of the coordination challenges in IEL, and noted the role of UN agencies. The Democratic Republic of the Congo (DRC) said the main challenge is that IEL is not binding.
The International Chamber of Commerce underlined the need to improve synergies between the environment, investment, and trade.
Discussion on Question 1 – What options can be considered to address the possible gaps or challenges related to principles of IEL mentioned by delegations without duplicating nor undermining existing law and ongoing efforts/processes? What would be the objective of such options? What methodology should be used to develop them? On Monday afternoon, Co-Chair Mudallali convened the first informal session to address guiding questions and to further consider the broader definition of gaps.
Saudi Arabia, with the US, Egypt, Japan, and Brazil, underlined the absence of consensus on gaps. She added, with China, that public international law principles of IEL can only be established as customary by well-established avenues. She said that the OEWG does not have a mandate to restructure the framework of environmental conventions.
Colombia noted that apparent gaps can appear in IEL under a number of circumstances, including where states have decided not to address certain issues, and supported a new instrument to guide general principles that could serve a role in contributing to legal clarity, avoiding potential disputes, awareness raising, and dispute settlement.
Bolivia called for consideration of climate justice and environmental justice, development in harmony with Mother Earth, and the participation of indigenous peoples. Japan also noted that the UNSG report addresses the scope and status of principles but does not identify a gap in principles. FSM said that gaps should not be interpreted narrowly, but should include challenges, inconsistencies, and shortcomings in IEL.
Brazil, with Ecuador, noted consensus that gaps exist in the broad sense of the translation of existing legal norms into reality, and supported talking about “challenges” rather than “gaps,” stressing that these exist regarding implementation and means of implementation. Coopération Internationale pour le Développement et la Solidarité said the most significant gap is the absence of an overarching legal framework that recognizes a human right to a healthy environment.
The FSM and Uruguay, with Mexico and the International Institute for Law and the Environment and Common Home for Humanity, called for a consolidation approach to existing principles, while tracking their development. Colombia called for the inclusion of soft law in any compilation. Uganda supported addressing principles under the four pillars of the UN mandate—peace and security, human rights, development, and rule of law—and following a sectoral approach to IEL.
China underlined that different countries and scholars have different views on the “scope, content, and scope of application” of IEL principles, and called for more research on the codification process.
Switzerland, the EU, and Chile cautioned against undermining existing MEAs. The EU said any work on principles has to take into account their history and context, and suggested that the OEWG process could acknowledge the relevance and importance of principles, but also express a commitment by states to be guided by or apply principles when they implement domestic policies. Switzerland outlined several options to address the possible gaps or challenges related to principles:
- an instrument;
- transferring and applying existing principles from one geographic region or level to other regions or levels; and
- targeting the specific deficit of each principle within its current setting, for instance in the MEA in which the principle is embedded.
Ethiopia, with Argentina, Bolivia, and Brazil, stated that they did not want to renegotiate existing MEAs. Ethiopia added that regional instruments should not be internationalized.
Canada said any discussion on principles is premature as, according to the recent First Global Report on the Environmental Rule of Law, the main gap in IEL is in domestic implementation.
Morocco and World Animal Net urged focusing on principles that enjoy consensus. Cameroon suggested that the OEWG should also consider innovative and emerging principles, in addition to established principles.
The FSM underlined the international community’s acceptance of the principle of indigenous peoples and local communities’ participation in IEL. Natural Justice said a global pact would be welcome as long as it includes the voices of indigenous peoples and local communities.
Egypt and Brazil urged postponing the discussion on principles until the International Law Commission (ILC) has finished its work on general principles of law. The FSM, supported by the EU, disagreed, describing the work of the ILC as responsive and reactive, while it is the role of states to take a lead in developing state practice.
Uruguay said that, to help IEL mature, existing principles should be compiled without being codified, separately from the ILC, so that this compilation can also include new principles. Japan called on delegations to avoid duplicating the work of the ILC.
The International Consortium for the Protection of the Environment cautioned against states abandoning their law-making power to judges who are currently left to respond to questions on principles. He said there is no risk of normative conflict with existing MEAs, since existing agreements will prevail under the doctrine of lex specialis, and there is no risk of regression, since a pact would only set out minimum standards that would not prevent states or other MEAs from going further.
Discussion on Question 2 – What options can be considered to address possible gaps related to the governance structure of IEL, including challenges in coordination and mutual supportiveness as well as risks of incoherence highlighted by delegations? On Monday afternoon informal discussions began on the second question.
Egypt urged addressing challenges in coordination and mutual supportiveness at the Conference of the Parties level as well as in secretariats and scientific bodies. Uganda noted that the OEWG cannot prescribe a permanent governance structure, due to the evolving nature of environmental management.
Chile and the DRC called for focusing on how to improve coordination and synergies between MEAs. The EU suggested encouraging states to ratify and effectively implement MEAs to which they are not yet parties. She supported considering how existing UN bodies and structures, for instance the UN Environmental Management Group (EMG), could be further strengthened.
Colombia cited the UNSG report’s observations on fragmentation and a lack of coordination on IEL, and called for alternative approaches to strengthening the structure of UNEP and consideration of institutional capacity to act as a global environmental authority. The EU suggested calling on UNEA to further support efforts on synergies and the need to improve cooperation on existing MEAs.
Morocco and Cameroon supported strengthening UNEP. Japan suggested a mapping exercise to identify where MEAs can be better coordinated, and supported a policy coordination role for UNEP.
Eritrea, for the African Group, underlined the centrality of the Addis Ababa Action Agenda (AAAA) together with the 2030 Agenda for Sustainable Development and reaffirmed the principle of CBDR. Ethiopia, for the Group of 77 and China (G-77/China), with the FSM, also underlined the financial, technological, and capacity gaps regarding implementation of the 2030 Agenda.
The DRC, opposed by the Russian Federation, recommended creating an international court for the environment, which would enable those responsible for international ecological crimes to be brought to justice and penalize those who infringe IEL.
Burkina Faso called for criminal sanctions to be part of instruments to govern sustainable development and for an enhanced role for judges.
Japan said the absence of an overarching instrument does not cause any major problem, and it was unclear how such an instrument would improve the governance of MEAs. The FSM said a formal instrument can be powerful, whether it is binding or not. Senegal recommended the development of a new legally binding instrument.
Bolivia proposed that the process be taken to the UNGA or UNEA, with future consideration of a political declaration.
Brazil urged framing efforts on coordination in the context of the outcome of Rio+20, and suggested that the UN Chief Executive Board for Coordination (CEB) could be used to convene the heads of specialized agencies and enhance their coordination on environmental issues.
Bolivia called for strengthening synergies that already exist among MEAs and the establishment of new synergies.
The FSM called for an expert-led approach to the development of a global pact, including the use of surveys, and for an intergovernmental conference preceded by a one-year preparatory process.
Mexico, with Bolivia, stressed the need to establish a working group and that a new instrument should set out clear links with the 2030 Agenda and be based on its targets and indicators.
Canada suggested secretariats of MEAs should be encouraged to undertake their own reviews on how to best address lack of implementation at the domestic level.
Switzerland outlined several options, including:
- strengthening synergies among MEAs through bottom-up approaches, highlighting the “exemplary” example of the Basel, Rotterdam and Stockholm Conventions coordination;
- using the EMG;
- avoiding duplication in reporting and monitoring processes by using the same reporting channels and not creating additional burdens;
- using internationally agreed environmental goals such as the Paris Agreement’s long-term goal; and
- sharing information among different MEAs’ scientific bodies.
Discussion on Question 3 – What options can be considered to address possible gaps or challenges relating to the implementation of existing rules and principles of IEL? On Tuesday, Co-Chair Duarte Lopes opened discussion on the third question in an informal session.
Brazil, with Peru, Saudi Arabia, Malaysia, Cuba, Ecuador, Cameroon, Senegal, Nigeria, Malawi, the DRC, and Guyana, pointed to the need to strengthen means of implementation available to developing countries, including finance, technology transfer, and capacity building. Egypt underlined the challenge of prioritizing the environment in the absence of supportive constituencies. The US said the lack of means of implementation is not a gap.
Benin underlined stakeholder capacity needs. Malawi highlighted systemic challenges, including corruption. India suggested that pragmatic solutions can be facilitated by diagnosing the costs of implementation.
Costa Rica called for an instrument in the form of a compilation of the main guiding principles of IEL, including a categorization of lesser principles. Senegal suggested:
- compiling legal texts to ensure greater cohesiveness;
- a communication strategy raising awareness of the environmental crisis; and
- an increase in inter-state cooperation.
The FSM underlined two case studies demonstrating the need for clarity in, and compilation of, IEL principles, citing: a resolution on geoengineering withdrawn at UNEA-4, where the difficulties in garnering consensus demonstrated inconsistent interpretations of the precautionary principle, and the international community’s delay in recognizing the right to a healthy environment as an important IEL principle.
Colombia proposed that issues and challenges in IEL might not be resolved by a new treaty, and called for further clarification of IEL principles through customary law, governance, and a possible declaration.
Cameroon and Guyana called for strengthening enforcement in IEL. The US opposed creating an overarching compliance mechanism.
Brazil called on UNEP to make proposals on means of implementation. China proposed an enhanced role for UNEP in areas such as codification of principles, research, and capacity development. The EU proposed that UNEP, in its capacity as chair of the EMG, collaborating with MEAs and others, develop a strategy on how the UN system can best support Member States facing implementation challenges, and called for full use of the Montevideo Programme.
The EU recommended that the private financial sector provide funding for environmentally sound initiatives.
Ecuador highlighted that MEA secretariats need to have the means to provide technical assistance to national implementation bodies. Mexico, with Bolivia, pointed to the Escazú Agreement as an example of a significant step forward in IEL. OceanCare, on behalf of NGOs, called for more coordination between MEAs and civil society.
Discussion on Question 4 – What options can be considered to address possible gaps related to specific regulatory regimes or environment-related instruments with a view to strengthening the implementation of IEL? Discussion on the fourth question took place on Tuesday. On regulatory regimes, Egypt cautioned against undermining accommodations, gaps, and ambiguities in IEL because they reflect diverse national circumstances and facilitate universal participation. The US called for the OEWG to conclude that it does not view design elements in existing MEAs as gaps. Georgia proposed addressing gaps separately at global, regional, and national levels.
Chile highlighted the need to strike a balance between the protection of trade, commerce, and the environment.
Colombia called for increased coordination of existing instruments, while noting the benefits of sectoral specialization, citing the example of linkages between the climate and ozone regimes.
Cameroon called for mutual capacity building across regimes while Bolivia underlined synergies, including with the 2030 Agenda. India noted that any new instrument must respect the delicate balance that exists across MEAs. The EU proposed taking up certain gaps in existing regimes while respecting their distinct decision-making structures.
Uruguay said the Montevideo V Programme, adopted by UNEA-4, is complementary to the OEWG’s work, and shows that new frameworks do not necessarily modify existing MEAs.
The International Consortium for the Protection of the Environment said a distinction between hard and soft law is excessively binary and that a pact would not threaten existing MEAs.
Calling for clarity in IEL, the FSM and Mexico noted that MEAs must be viewed as evolving responses to new challenges.
The EU called for swift political action, including upstream action on plastics and marine litter.
Peru, with Senegal, said a future instrument should incorporate a human rights and gender-based approach. China observed that IEL differs from human rights legally and politically, as well as in terms of obligations, as environmental obligations extend beyond states. OceanCare, on behalf of NGOs, said existing regimes lack a reflection of planetary boundaries and must recognize the right to a healthy environment.
On compliance mechanisms, Egypt agreed these fall short but reflect the will of participants. Calling for effective implementation of existing MEAs, the EU underlined reporting and compliance mechanisms. Nigeria called for an international environmental court.
Costa Rica noted deficiencies in implementation resulting from the proliferation of instruments and called for a centralizing process, hosted and managed by UNEP.
Malaysia, Guyana, and Russia called for strengthening UNEP’s role. Costa Rica suggested that there may be a need for the OEWG to have a multiplicity of outcomes, and asked the Co-Chairs to present delegations with a roadmap at the end of the session.
Colombia called for negotiations that will help delegations identify options and consolidate, update, and position principles agreed since the Rio Declaration.
Second Round of Information Discussions: On Tuesday afternoon, Co-Chair Mudallali reconvened the informal session and invited delegations to revisit all four questions and related matters. Argentina, for the Latin American and Caribbean Group, called for the process to be inclusive, transparent, and open, and for a consensus outcome. He highlighted that the process should consider:
- how to resolve the lack of means of implementation;
- how to improve coordination and synergy between international environmental organizations; and
- how to not undermine existing agreements and bodies.
Question 1:On the OEWG outcome, Turkey called on delegations to be aware of the current atmosphere regarding multilateralism, cautioned against adopting a top-down approach, and opposed a proposal for an international environmental court for cost reasons. South Africa called for a strengthened approach to multilateral approaches to sustainable development, while ensuring no unintended consequences that might weaken IEL.
The EU outlined proposals for outcomes from the OEWG process, noting that outcomes could be pursued individually or in combination. On principles, the EU proposed a legally binding instrument or a treaty containing: provisions safeguarding or enhancing environmental protection; and a list of, and other references to, IEL principles, together with other matters, to be possibly combined with a non-legally binding object and agreed by 2020 or 2021. The EU also proposed a possible high-level declaration capable of attracting sufficient political buy-in, incorporating the issues discussed at the OEWG, and addressing effectiveness and implementation of existing regimes. The EU suggested that a third possibility could be the adoption of a document by the UNGA.
South Africa called for support for equity, the right to development, CBDR, and recognition of the common heritage of mankind beyond national jurisdictions. Ethiopia called for the incorporation of the right to development in any new instrument.
Turkey noted that a de jure gap on paper may not be a de facto gap, and vice versa, and noted the importance of sovereign state decisions. He urged a focus on challenges.
Guinea highlighted the need to increase means of implementation in developing countries. Kenya cautioned that a new financing plan would duplicate the work of the AAAA. World Animal Net highlighted the need for capacity building and funding support for compliance in developing countries.
Question 2:The EU called on the OEWG process to reaffirm and support full implementation of paragraphs 88 and 89 of the outcome document of Rio+20, with a crucial role for UNEP.
Ethiopia and Kenya called for strengthening UNEP. Uganda called for an implementation programme under UNEP with a longer term horizon than that of the Montevideo Programme. Saudi Arabia cautioned against increasing UNEP’s workload or changing its mandate in ways that infringe on the mandates of other organizations.
The EU proposed that MEA secretariats be involved in the preparations for UNEA to ensure greater coherence, and called for their scientific bodies to enhance information sharing. The EU proposed that states and parties to MEAs consider streamlining reporting on implementation to improve the quality of information and alleviate the burden.
On mainstreaming the environment throughout the UN system, the EU called for:
- a reaffirmation of the importance of the EMG with adequate political, financial, and in-kind support from all members;
- an EMG mapping exercise covering regional and global action plans;
- recognition of the system-wide strategic framework supporting the 2030 Agenda; and
- a role for the UNEP Executive Director in strengthening system-wide coordination at the UN.
She also called on the UN CEB to give political backing to the strategic-wide framework.
Questions 3 and 4:Turkey called for strengthening institutions with responsibility for non-compliance. The EU called for the completion of compliance mandates where these have not been fulfilled.
Common Home for Humanity called for political momentum, urging delegates to consider the “political sign” that the OEWG’s outcome could send “to the younger generation.” CliMates said a pact was “not a revolution in IEL,” but rather a way to ensure legal certainty.
Provisional agenda and dates of the third substantive session
On Wednesday morning, Co-Chair Duarte Lopes reconvened the plenary. There was a minute of silence to mark the death of Ambassador Brenda Muntemba of Zambia in a road traffic accident. Delegates then considered the provisional agenda and dates of the third substantive session. A draft provisional agenda was circulated to delegations. The agenda included consideration of the draft recommendations and consideration of the draft report of the OEWG.
Co-Chair Duarte Lopes proceeded to offer reflections from the Co-Chairs on the process, the current session, and the way forward, noting:
- progress over two days of wide-ranging discussions on various issues arising from the UNGA resolution;
- discussion on definition of gaps in IEL and related instruments, which gaps should be considered, and options to address them;
- proposals from delegations on substantive elements following comprehensive discussions, which will be highlighted in a Co-Chairs’ summary;
- the need to move to a discussion on recommendations to be forwarded to the UNGA, and the proposed consideration of draft recommendations under the draft provisional agenda for the third substantive session, on the basis of elements to be prepared by the Co-Chairs;
- a proposal to circulate these elements for recommendations to the OEWG during the intersessional period, based on discussions to date, in an effort to bridge differences between delegations in order to move forward and meet the OEWG’s mandate;
- an invitation from the Co-Chairs for delegations to submit suggestions to inform the preparation of elements not later than 12 April 2019; and
- a commitment that all views will be taken on board as the Co-Chairs develop the elements for recommendations.
Duarte Lopes then invited comments on the draft provisional agenda for the third session. He informed Morocco that no date had been set for the circulation of the draft recommendations. Russia stressed delegations’ need for at least one month to consider the Co-Chairs’ paper.
The draft provisional agenda for the third substantive session was adopted.
On the dates of the third substantive session, Co-Chair Duarte Lopes suggested the third substantive session take place in Nairobi beginning 20 May 2019 for at least three days, as per OEWG decision 2018/1. Ethiopia, for the African Group and on its own behalf, with Brazil, Mexico, Serbia, Kenya, Morocco, Bahrain, Tanzania, Cameroon, and Russia, requested the third session take place after the month of May because the dates proposed coincide with the first UN-Habitat Assembly. The EU, with Switzerland, Bolivia, and Nicaragua, disagreed, noting that the May dates had already been agreed at the organizational session. Canada warned that should the meeting not take place in May, their country’s next available dates would be in the fall. China said that, after May, the first week of June would be their only option. Morocco noted that Muslim holidays fall in the first week of June. Several delegations expressed concern about the third session’s overlap with the UN-Habitat Assembly, but nonetheless called for flexibility, noting that the international calendar was always full.
On the duration of the third substantive session, China, with the EU, Guinea, and Costa Rica, said that a five-day meeting may be needed to give the group enough time to discuss the agenda. Ethiopia, for the G-77/China, with Bahrain and Sudan, disagreed, suggesting that three days would be enough. China said the statement made on behalf of the G-77/China did not reflect their view, but that, in the spirit of compromise, their country could agree to a three-day meeting. Saudi Arabia, with the US and New Zealand, suggested a two- or three-day meeting, considering that the group had only to consider one agenda item on draft recommendations. Switzerland proposed a three-day meeting in May, in order to accommodate small delegations that also need to attend the UN-Habitat Assembly. Cameroon said delegates should be open to all options.
Before adjourning the meeting, Duarte Lopes and Mudallali urged flexibility on part of the delegates requesting a change in dates, considering the dates had already been agreed in decision 2018/1, that UNGA resolution 72/277 requests that the OEWG report back during the first half of 2019, and that the Co-Chairs are not available during the month of June due to a heavy calendar in New York.
On Wednesday afternoon, Co-Chair Mudallali recalled deliberations at the organizational session of the OEWG in September 2018, when decisions on the provisional agenda and dates for the third substantive session were agreed by consensus. She reported that it was the view of the Co-Chairs that any change would also require consensus. She noted the subsequent development, regarding plans for the UN-Habitat Assembly, but added that delegations were far from general agreement on alternative dates for the third session, and thus proposed retaining 20 May as a start date. As a compromise and to accommodate concerns about possible overlap with preparations for the UN-Habitat Assembly, Mudallali proposed that the third session will be limited to three days, and indicated that the Co-Chairs will make themselves available for pre-sessional consultations on Saturday and Sunday, 18-19 May. Mudallali added that the Co-Chairs would strive to make their report on possible elements of draft recommendations available one month in advance to ensure efficiency. Egypt, the US, Senegal, Saudi Arabia, Guinea, and the Russian Federation thanked the Co-Chairs for their compromise proposal. The EU recalled her view that more time would be needed for the third session, and noted the EU’s expectation that negotiations will commence on the Co-Chairs’ report on draft elements. The DRC also questioned the adequacy of three days.
Canada, with Uruguay and Ecuador, expressed support for the Co-Chairs’ proposal.
In answer to a question from Uruguay, Mudallali responded that statements made during the week would be available online.
Mudallali then read the decision on the agenda and dates of the third session, which was adopted.
Under other matters, Saudi Arabia requested that the pre-session consultations do not prejudge the work of the third session.
The US enquired as to the status of the financing of the activities of the OEWG. In response, Elizabeth Mrema said that of the USD 1.7 million received to date to support the work of the OEWG, USD 1.4 million had been spent so far. She suggested that the cost estimate for a three-day session, based on an estimate of 55 delegates nominated, was about USD 561,000, and that the OEWG had received a pledge from the EU of USD 500,000, which is to be transferred. Thus, she concluded, a three-day meeting should have a shortfall of about USD 50,000.
Co-Chairs’ Summary: The Secretariat delivered a non-exhaustive oral summary of points addressed during the second substantive session of the OEWG, including:
- general agreement on a transparent discussion and the importance of consensus;
- the need to reach pragmatic outcomes that add value while avoiding duplication, and wide support for the view that the OEWG’s work should not undermine or weaken existing instruments;
- ensuring the process is based on existing relevant political declarations, including the Stockholm Declaration, the Rio Declaration, and the Rio+20 Declaration; and
- the need for the OEWG’s work to support the 2030 Agenda;
- a broad understanding of gaps as lacunae, deficiencies, or challenges;
- the importance of identifying gaps through a science-based approach;
- a view that some gaps in environmental instruments are voluntarily designed and are often the result of delicately balanced compromises in difficult negotiations; and
- support for innovative solutions.
- discussion covered interpretation, unequal application, and a lack of consistency of principles in IEL;
- an observation that principles have matured and formed part of customary law, while other principles have become soft law;
- an understanding that further clarification of principles is needed in order to add value and pursue further refinement;
- a proposal that a new instrument could clarify new or emerging principles;
- an interest among some delegations in seeking further clarity and waiting for the ILC to complete its ongoing work on general principles and customary international law; while others said this was not necessary;
- a view that the principles in a new instrument would apply where there is currently a vacuum in the regime of MEAs and regulations;
- a warning about re-opening, re-negotiating, or weakening principles, noting that one principle can sometimes have different formulations across various instruments; and
- a preference for taking the Rio Declaration as the basis of understanding principles of IEL, including CBDR and respective capabilities; and to respect sovereignty over national resources.
On options for a new instrument:
- diverse views on the nature or format of a new instrument, including: a legally binding instrument; a high level declaration; or a document by the UNGA;
- a view among some delegations that the nature of the instrument can be determined at a later stage of the negotiations;
- a view among some delegations that the negotiations should not be limited to principles, but include consideration of means of implementation;
- some objections to the negotiation of a new instrument, and a view that this discussion is premature;
- options for further intergovernmental or expert consideration involving a group of experts working through the UNGA, the ILC, or UNEA; and
- some objections to proposals for an international environmental court.
- agreement on: strengthening international environmental governance, with observations tabled regarding a lack of system coherence, implementation challenges, and a failure in law to address the interdependent nature of ecosystems; as well as respect for existing instruments and bodies;
- some support for a role for UNEP and UNEA in strengthening environmental governance and international law, referring to the paragraphs 88 and 89 of the Rio+20 outcome document on international environmental governance;
- support for strengthening cooperation and synergies among UN bodies, including regulatory regimes and environmental instruments; and
- the failure of the IEL system to deliver expected results due to failures in cooperation and coordination.
On cooperation and coordination:
- calls for strengthening UNEP and UNEA consistent with paragraphs 88 and 89 of the Rio+20 outcome document Declaration;
- a possible call by the UNGA for increased cooperation and coordination among MEAs;
- a possible call by the UNGA on Member States to ratify MEAs;
- the creation of a working group tasked with the identification of synergies across MEAs and environment related instruments;
- the creation of a dedicated forum of representative bodies, possibly under UNEA;
- a possible call by the UNGA for more mainstreaming of the environment across the UN system, including EMG implementation; and
- recognition that a lack of implementation represents a key gap/challenge.
- an understanding of gaps in implementation ranging from a lack of capacity building and financial and technological resources to an absence of the prioritization of political decision-making and political will, with weak monitoring;
- the importance of strengthening means of implementation, with a main focus on international cooperation, including provision for necessary funding, capacity building, and the transfer of technology; and
- the link between political will and implementation.
On legally binding commitments:
- provision for MEA secretariats to offer means of support to Member States in meeting their obligations;
- the development of compliance mechanisms, although some objected to proposals for a global compliance mechanism; and
- the need to address funding beyond the international environmental law regime, and the need to build on existing financial platforms such as the AAAA.
On options examined:
- a role for UNEP in supporting innovative measures to provide necessary support for the implementation of IEL;
- sharing best practices including good models of public-private partnerships;
- the full use of the Montevideo Programme to foster implementation of environmental rule of law;
- proposals that UNEP, with the EMG and MEAs, develop a system-wide strategy to support Member States in the implementation of IEL;
- strengthening interlinkages between scientific bodies servicing MEAs; and
- the development of a framework on the exchange of data and knowledge in the field of IEL.
The Co-Chairs thanked the host, Kenya, Conference Services, and the interpreters for their invaluable work and support.
Responding to the oral summary, Canada, with Uruguay and Ecuador, expressed support for the Co-Chairs’ proposal. Ethiopia, with China, also supported the Co-Chairs summary, saying it reflected the discussions.
Colombia asked whether the budget described took into account pre-sessional consultations. Duarte Lopes responded that this depended on particular requests and arrival dates of each delegation.
The US, with Egypt, suggested that the Co-Chairs remove any reference to particular principles in their summary, and noted that the summary should make clear that the proposal for an international court on the environment was only supported by one country. China requested the phrase referring to the international court on the environment be repeated.
Mudallali gaveled the meeting to a close at 4:04 pm.
A Brief Analysis of the Meeting
“Time to panic”
(New York Times, 21 February 2019)
The second substantive session of the Ad Hoc Open Ended Working Group towards a Global Pact for the Environment (OEWG) convened for three days against a backdrop of rising concern about the state of the global environment as demonstrated by the sixth UN Global Environmental Outlook report launched just days earlier at the fourth session of the United Nations Environment Assembly (UNEA-4), the global climate strikes, and increased international media coverage of the climate emergency.
At its first substantive session in January, the OEWG considered a report by the UNSG that identified and assessed possible gaps in international environmental law (IEL) and environment-related instruments with a view to strengthening their implementation. Following this consideration of gaps, this time the OEWG was tasked with considering “possible options to address possible gaps” in IEL and environment-related instruments—a wording that to some seemed “relaxed” or somewhat tentative in light of the urgency of global environmental problems. This was, perhaps, inevitable due to the constraints imposed on the Co-Chairs by the UNGA resolution that had given the OEWG its mandate.
However, with a deadline to meet before the first half of 2019 comes to a close, the OEWG had work to do, and most delegates agreed that it made progress towards its mandate, even if not as much as some had desired. During the intersessional period, delegates received a list of guiding questions by the Co-Chairs to structure discussions. Aligned with the chapters of the UNSG’s report, the four questions called for consideration of possible options to assess gaps or challenges relating to, respectively:
- principles of IEL;
- the governance structure of IEL;
- the implementation of existing rules and principles of IEL; and
- specific regulatory regimes or environment-related instruments.
As in the first substantive session, the original proposal for a legally binding global pact, which was the impetus for the OEWG’s creation, was not the explicit subject of talks, but loomed large in the room. Here, it was discussed as one among a wide range of options proposed and considered by delegates. With extensive bilateral consultations reportedly held behind the scenes by France, the main proponent of the global pact, some considered that two parallel conversations were underway at the meeting: one facilitated by the formal agenda; and a second driven by the supporters of a global pact, often focused on the original aspiration for a new legally-binding instrument. One of the shifts observed at the session—as these conversations converged—was a move away from the anticipation of a singular outcome to a plurality of responses.
This brief analysis assesses progress at the second substantive session, examines emerging “options” as proposed by delegates, discusses where a “global pact” fits in, and looks ahead to the next steps.
“Less à la carte, more table d’hôte:” Towards a plurality of options
The work of the Co-Chairs combined with the efforts of champions in support of a meaningful outcome facilitated an emerging consensus that more has to be done for the environment. As one delegate put it, “Nobody here is saying that strengthening environmental governance is a bad idea.” The issue before the OEWG was to elaborate what, exactly, should be done. In light of the wide range of options presented, many delegates thought it likely that the eventual report to the UNGA might contain a “package” or “menu” of recommendations, rather than a single outcome.
In addition to numerous options identified to address implementation and governance challenges, many identified an instrument as one possible option. However, divergent views emerged on its form. Among the possibilities laid out were a legally binding instrument, a high level declaration, and a UNGA resolution. Some identified a high-level political declaration as a potential landing ground, which could potentially find consensus with supporters as well as detractors of a global pact. A proposal for the creation of an international environmental court, however, met with strong opposition.
Views also diverged over the contents of an instrument. Some called for a codification of principles, while others preferred a “compilation” or “list” of principles, and still others regarded any principles-based instrument as problematic. Others noted that if an instrument was in the form of a declaration, it could include a much broader range of material, potentially incorporating many of the other options mentioned.
In contrast to the broad focus on options, some early interventions sought to limit talks within the scope of the discussion held during the January session on “gaps” in the context of the UNSG’s report, which some described as an “interminable” debate. The risk of the OEWG process disappearing amidst endless gaps and definitions was highlighted at a pre-session briefing organized by the French Government. Suggestions in plenary that the OEWG could not move forward in its discussion of options until it had reached agreement on the question of gaps were respectfully taken on board and simultaneously circumvented. This “throwback” to the first substantive session led some delegates to express frustration that the process was “going in circles.” Others considered that while there may not be consensus on gaps, there was general agreement in the room that “challenges” existed. Most urged that a lack of consensus on gaps should not preclude the OEWG from moving forward. Considering the range of options that were in fact proposed, it could be said that this sentiment carried the day to some extent.
The range of potential recommendations throughout the week gave rise to a heightened emphasis on consensus—a “cherished principle and practice” in MEAs, as one seasoned participant put it. Many delegates urged the OEWG to follow a consensus-based approach. If kept to, this approach could rule out a legally binding treaty as part of the recommendations forwarded to the UNGA, due to the fact that, as many noted, this kind of instrument would not attract universal buy-in. As one proponent said, “If countries don’t want to sign it, they won’t.” This “take it or leave it” attitude, however, was seen by others to risk dearly held convictions about the importance of consensus in the environmental context.
“Would you like the Chef’s Special?” The place of a global pact
If the merits of a new legally binding instrument still remained unclear at the end of the three-day meeting, it was not due to any pulling back on the intense political investment in the idea of a “Pact” by the French Government and the originators of the idea in the Club des Juristes. Observers and critics alike commented on France’s démarches, which have resulted in conversations at the highest levels of European governments and were pursued systematically in Nairobi both during the OEWG and, to some extent, during UNEA-4 the previous week. Some of these efforts apparently paid off, with some states’ voices clearly articulating support. Supporters highlighted, among others, such a treaty’s potential to clarify new and emerging principles for raising the visibility of IEL, and its helpfulness to domestic jurists tasked with interpreting IEL principles. However, the wide divergence of views seen in January persisted, with many states resolutely rejecting, or expressing doubt about, the possibility of a legally binding treaty. Some, for example, expressed concern about undermining or renegotiating existing MEAs, despite reassurances that international law addresses these risks.
The French position appeared to have softened somewhat, especially in comparison to the January session. One observer reported that, following lessons learned at the first substantive session, the French Government had become resigned to the need to relax their agenda. There was much interest in reports of robust and prolonged exchanges within EU coordination meetings, which were taken as an early bellwether for the fate of the original French proposal. The EU stance coalesced around a recommendation to the UNGA that an instrument be created, while keeping its options open as to the legal form such an instrument would take. As one supporter of a legally binding pact mused, “It is not necessary to decide on its form now. The important thing is getting consensus that an instrument is needed.” Nonetheless, the prospect of a legally binding treaty was not abandoned. Some fear, however, that leaving the possibility of a legally binding instrument on the table could lead to future discussions in the UNGA becoming “bogged down.” The Co-Chairs may have to make a tactical call on whether sufficient consensus exists to keep a legally binding pact in play.
Pact proponents argue that even if the eventual instrument is non-binding it would still have added value, including significant symbolic value. In this respect, one supporter expressed enthusiasm that it would “bring back the feeling of the Paris Agreement” and “give hope to the youth.” In addition, delegates said, it would carry political weight, provide a valuable reaffirmation of key IEL principles, and bring together states and non-state actors. Legally speaking, one delegate noted, it could be used by jurists in a similar way to how the 1992 Rio Declaration and other “soft law” is currently utilized, noting “It wouldn’t have zero legal effect.” Further, a non-binding instrument would not preclude an eventual legally binding treaty “when the timing is right.”
With significant doubt remaining over the contents of such a non-binding instrument, however, it remains to be seen whether the OEWG’s recommendations will be to strengthen existing regimes or create new international environmental law.
Deciding the menu together: The way forward for the OEWG
Before the close of its third substantive session in May, the OEWG’s mandate is to produce a report containing recommendations, and submit it to the UNGA. In this light, as outlined by the Co-Chairs during the closing plenary, discussion at the next session needs to advance to the recommendations to be forwarded to the UNGA.
With only one substantive item on the agenda for the three-day session in May—consideration of the recommendations and consideration of the report—Member States have homework to do. As advised by the Co-Chairs, delegations can submit suggestions to inform the preparation of elements for the recommendations by 12 April 2019. The Co-Chairs will incorporate these elements, on the understanding that all views will be taken on board, into draft elements for recommendations, which will be circulated to delegations one month prior to the third substantive session.
The calls for a consensus approach raise the question of how consensus can actually be achieved. A few delegates, while welcoming the informal setting used at this session, noted that at times it was informal “in name only, not in substance.” They urged that the third substantive session include more informal and interactive settings to facilitate and fast-track negotiations, since “only in a smaller room can the sticky issues be resolved.” While the fate of the original proposal for a “Global Pact” remains murky, it is clear that the French initiative has triggered a timely, even urgent, revisiting of the state of international environmental law and governance and its status in relation to other, as some have observed, more coherent and empowered legal orders.
As the meeting was gaveled to a close on Wednesday afternoon, some wondered whether the OEWG’s path back to UNGA—with the formulation of recommendations for high-level consideration—may be marked by a bittersweet arc of triumph and compromise for France. Only time will tell.
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For additional meetings, see http://sdg.iisd.org