30 November 2018: In an advance copy of a report on the global pact for the environment, the UN Secretary-General notes that international environmental law and its effective implementation could be strengthened through a comprehensive and unifying international instrument that gathers all principles of environmental law. The report responds to a UN General Assembly (UNGA) resolution on a possible global pact for the environment. A panel of experts will discuss the report on 10 December 2018.

In May 2018, the UNGA adopted resolution 72/277 on ‘Towards a Global Pact for the Environment,’ by which UN Member States request the UN Secretary-General to submit a technical and evidence-based report that identifies and assesses possible gaps in international environmental law and environment-related instruments with a view to strengthening their implementation. The report should set the stage for deliberations of the ad hoc open-ended working group established by the UNGA through the same resolution, discuss options to address possible gaps in international environmental law and environment-related instruments, and make recommendations. The UNGA resolution that calls for the report notes that the recommendations “may include the convening of an intergovernmental conference to adopt an international instrument.”

In accordance with this mandate, UN Secretary-General Antonio Guterres issued an advance edition of the report titled, ‘Gaps in International Environmental Law and Environment-Related Instruments: Towards a Global Pact for the Environment’ (A/73/419). The report highlights the need for effective reporting, review and verification measures, and robust compliance and enforcement procedures and mechanisms. It also notes a need to enhance the role of non-State actors in international environmental law-making, implementation, monitoring and compliance procedures.

The report defines a “gap” as “a lacuna, void, defect or deficiency,” specifying that a gap can occur: within a multilateral environmental agreement with respect to its content or its ability to fulfill its object and purpose; between legal frameworks (for example when there is substantive or procedural overlaps, discrepancies or conflicts); or where there is no regulation at all (for example, limitations in substantive, institutional or geographical coverage). To identify such gaps, the report reviews and analyses the corpus of international environmental law and environment-related instruments, and the governance structure and implementation of international environmental law. It assesses the status and gaps related to the principles of international environmental law, including: prevention; precaution; polluter pays; environmental democracy; cooperation; right to a clean and healthy environment; sustainable development; common but differentiated responsibilities and respective capabilities; and non-regression and progression.

The report assesses gaps in regimes on hazardous substances, protecting the atmosphere, soils, freshwater, oceans and seas, and conserving biodiversity.

The report assesses gaps related to existing regulatory regimes concerning the protection of the atmosphere, the conservation of biological diversity, the protection of soils, of freshwater resources and of oceans and seas, and the regulation of hazardous substances, wastes and activities. It also discusses gaps related to environment-related instruments (trade, investment, intellectual property and human rights), and to the governance structure, implementation and effectiveness of international environmental law.

The report notes “significant gaps and deficiencies” on the various components it examines. Among its conclusions, it finds that: there is no single “overarching normative framework” that sets out rules and principles of general application in international environmental law; and the articulation between multilateral environmental agreements and environment-related instruments remains problematic due to a lack of clarity, “content-wise and status-wise,” of many environmental principles.

On coherence, it indicates that international environmental law “is piecemeal and reactive,” as it is characterized by fragmentation and a general lack of coherence and synergy among a large body of sectoral regulatory frameworks. For example, it states that more than 500 instruments have been adopted as multilateral environmental agreements, and each agreement addresses a specific environmental challenge and “is legally and institutionally” distinct from the others.

Per the report, approximately 200 treaty-based institutions have been established since the UN Conference on the Human Environment (Stockholm Conference) in 1972. The structure of international environmental governance, it finds, is characterized by institutional fragmentation and a heterogeneous set of actors, which reveal important coherence and coordination challenges.

The report outlines implementation challenges at the international and national levels. At the international level, it highlights a lack of clarity of many environmental principles, while at the national level, it notes a lack of appropriate national legislation, financial resources, environmentally sound technologies and institutional capacities.

IUCN, France, Senegal and the International Council of Environmental Law (ICEL) announced that they will “assemble a panel of international experts” at the UN Headquarters to assess the recommendations of the Secretary-General report. The event is scheduled for 10 December, on the occasion of Human Rights Day.

The ad hoc open-ended working group established by the UNGA to consider the report’s recommendations is co-chaired by Francisco António Duarte Lopes, Permanent Representative of Portugal, and Amal Mudallali, Permanent Representative of Lebanon. The working group’s organizational session took place in September 2018, and its first substantive session will take place in Nairobi, Kenya, from 14-18 January 2019, followed by additional substantive sessions in March and May 2019.

On 26 September, on the sidelines of the 73rd UNGA high-level debate, experts, UN officials, UN Member States and other stakeholders exchanged views on a global pact for the environment, including its added value and potential elements of content, during a conference at Columbia University in New York, US.

On 9 October 2018, 100 jurists from around the world called on States to adopt the global pact. This call for action notes that the global pact would be the “cornerstone” of international environmental law and would constitute an “umbrella text” that would oversee the different existing sectoral agreements (such as on climate, biodiversity, waste, and pollution). It would therefore not substitute these sectoral treaties, but aim, instead to complement them and facilitate their implementation, the call for action says. [Publication: Report of the UN Secretary-General: Gaps in International Environmental Law and Environment-related Instruments: Towards a Global Pact for the Environment – Advance version] [WCEL-IUCN, ICEL, IGEP joint press release] [IUCN/UNEP press release] [Global Pact for the Environment website]