A Plea for a Principled Approach to International Environmental Governance
A principled approach to environmental governance can provide the cement for a new and more united world that would better protect our planet and humankind. An agreement on fundamental principles would strengthen the implementation of existing conventions. In 2022, States could adopt a political declaration that would revive the idea of a Global Pact in the context of the commemoration of the 50th anniversary of the Stockholm Conference.
“Only One Earth” was the defining sigil of the 1972 Stockholm Conference. In the height of the Cold War, these three words of unity stood out in a sea of division. This unusual moment in the history of international relations led to two consequential developments. First, the adoption of the eponym 1972 Declaration that laid out the foundations of environmental governance. Secondly, the creation of a new international institution, one often lauded as “the world’s environmental conscience“: The United Nations Environment Programme.
Yet, five decades after these unprecedented achievements, international order lies in disrepair, and the global environment is as threatened as ever. According to the International Panel on Climate Change, human activities have so far caused approximately 1.0°C of global warming. If it continues to increase at the current rate, we are likely to reach 1.5°C between 2030 and 2052.
In response to this foreseen disaster, International Environmental Law has so far proved inadequate to mitigate the decline of the natural world. In a 2018 report issued by the United Nations Secretary-General, it was found to suffer from consequential gaps and deficiencies at the level of principles, existing regulatory regimes, governance structure as well as regarding its implementation and effectiveness.
Amidst international discord on almost every subject of contention, the environment holds that extraordinary quality of being common to all nations and individuals. To translate this shared predicament into a common duty of care is the international task of the century. This crisis can be turned into an opportunity to rebuild world order around the keystone of environmental protection. A principled approach to environmental governance can provide the cement for a new and more united world to better protect our planet and humankind.
1. Why Do Principles Matter?
Principles embody values. Almost all nations were founded upon a set of values. These values are defined in “constitutional moments”, i.e., historical instances when entire peoples decide to lay down the fundamental values of their common social contract. The soul of these defining moments is often encapsulated in fundamental scriptures. The principles of the French Revolution were enshrined in the 1789 Declaration of the Rights of the Man and of the Citizen. Similarly, the values of the American Revolution were embodied in the 1776 Declaration of Independence. These texts tell the defining tale of a society and inspire people to live up to the ideals they proclaim.
Principles fulfill four distinct functions in a legal system. First, they have an “architectural function” in that they provide the foundation of all sectoral regimes. The purpose of law is not solely technical: it is to translate fundamental principles into applicable, technical rules. These rules are secondary norms in that their validity can be reviewed on the basis of the principles that inspire them.
Secondly, principles fulfill an “interpretative function” insofar as they inspire courts in interpreting unclear provisions. Judges can refer to fundamental principles should the secondary norm prove insufficient to provide the solution to a case.
Thirdly, principles have a “conciliatory function”: when norms contradict each other, principles offer a conceptual matrix that helps articulate inconsistent requirements.
Ultimately, principles serve a “gap-filling function”. If judges find no answer to a litigious question, they often have to refer to the philosophical and political principles that underpin a given polity.
General principles of law carry normative effect. Despite their often-broad wording, principles from constitutions and international treaties are applied on a daily basis by judges. What is true in national jurisdictions is equally valid on an international scale. General Principles of Law are recognized by Article 38 of the Statute of the International Court of Justice as a source of law. For instance, the European Convention of Human Rights allows for courts to perform judicial review on the basis of its principles.
2. Why are principles needed in International Environmental Law?
First, at the level of treaty-making, the absence of common values hinders the creation of new norms. In the absence of consensus around a common basis, it is harder for negotiators to reach an agreement on the technicalities that are to solve a specific problem. Drawing from the field of international trade, one can see that the adoption of the 1947 General Agreement on Tariffs and Trade catalyzed the elaboration of further technical rules. Such a dynamic is desperately needed in environmental law.
The value of a technical regulation could then be evaluated on the basis of its capacity to further the fundamental principles from which it would derive. Per example, one could argue that the Paris Agreement could be evaluated on the basis of its ability to ensure the right to a healthy environment and intergenerational equity. This would allow to put the technical MEAs in their context: not an end in themselves but rather a means to furthering the fundamental principles of environmental protection.
Secondly, an agreement on fundamental principles would strengthen implementation of existing conventions. The strength of a State’s commitment to a technical regulation is more likely to falter in the absence of agreement on a common foundation. It is between States as it is in marital life. When the relation is tested by stormy weather, one must recall the reasons for which one committed in the first place. In both cases, the strength of a commitment lies in the solidity of the values which underlie it.
When the time comes for a State to pay its dues under an international agreement, some may think it more expedient to abandon ship rather than incur the cost. This is precisely the kind of reasoning that backed Canada’s 2011 withdrawal from the Kyoto Protocol and led the United States to initially denounce the Paris Agreement under the Trump administration. Agreeing on the fundamentals can thus strengthen a State’s commitment by providing solid ground on which to bear the cost of implementation.
3. Finding common values in a divided world
Just as with climate change, Covid-19 reminds us that uncoordinated responses to transnational issues can spell disaster for all. Transnational problems require multilateral responses. For their effects to resist the test of time and shifting political majorities, such responses need to be enshrined in law. These fundamental challenges compel us to find common norms on which we can build for the future.
The basis for such an endeavor has already been laid down in previous texts such as the Stockholm Declaration or the Rio Declaration. These declarations, while non-binding per se, catalyzed the development of international as well as domestic environmental Law. They laid the foundations of the recognition of the right to a healthy environment and of the duty to take care of the environment.
These rights are important because law is ultimately made for citizens. As international law is meant to be the prime vector of environmental regulation, this democratic requirement applies to it as well. Two ideas emerge from this postulate. First, a substantive requirement: a third generation of rights and duties relating to environmental protection must be recognized. The recognition of new principles should include these new rights and duties. Secondly, a formal requirement: law has to be made accessible for citizens. Current treaties on the environment are too technical to be understood by the citizens of the world. Future instruments should take this necessity into account.
A constitutional moment is required to forge the rules of a new order that could guarantee the sustainable coexistence of all living beings. While this may seem like a distant dream at the present moment, the history of international relations shows us that there is always hope. In 2009, the Copenhagen summit was decried as a catastrophic failure as States missed the opportunity to agree on a climate agreement. Despite this first defeat, the Paris Agreement was signed 6 years later as the perseverance and optimism of people of good will led States to come back to the negotiating table.
In a similar fashion, one could be tempted to believe that an international treaty akin to a Global Pact will never come to fruition simply because the 2018 initiative did not meet its objectives. Yet, not all hope is lost. In 2022, States could adopt a political declaration that would revive the idea of a Global Pact in the context of the commemoration of the 50th anniversary of the Stockholm Conference. The environmental crisis requires us to lay down the foundational principles that are to guide humankind’s interaction with its environment. Principles, in the end, are like stars. They may seem out of reach, but they light the path ahead.