By Patrizia Heidegger, EEB
“Every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment”. That is the first article of a draft ‘Global Pact for the Environment presented by French President Macron in 2017. You would be forgiven for thinking that this right already exists. But unbelievably, in 2019 we have no globally recognised human right to a healthy environment. Governments from around the globe are now discussing the content of a future Global Pact for the Environment and the principles it should turn into rights for people and obligations for states.
The lack of a human right to a healthy environment and numerous other gaps and inconsistencies in international environmental law are what the Global Pact for the Environment seeks to address – with the ultimate aim of helping us save the planet and tackle the various urgent ecological and social crises humankind faces.
From the Rio Declaration on Environment and Development brokered back in 1992 to the current 2030 Agenda for Sustainable Development signed by world leaders in 2015, numerous principles of environmental protection and environmental democracy have been established. It is a tempting prospect to imagine bringing them together into one harmonised and legally binding international treaty that courts could use to enforce environmental law around the globe.
All countries bar five (the Philippines, Russia, Syria, Turkey, and the United States) gave the green light to start work on the Pact in 2018. Now, in 2019, diplomats are meeting to make progress on the text. However, environmental organisations warn that the process of agreeing on the Pact could actually risk weakening hard fought for principles of environmental law.
It remains to be seen whether enough governments have the political will to take big steps forward in creating new environmental rights and obligations and whether they can agree on the principles they want to strengthen. While some of the emerging economic powers seek to emphasise their national sovereignty by deciding how to use up their natural resources, other governments want to advance environmental democracy – much to the displeasure of authoritarian regimes. Some Latin American countries demand enshrining the rights of nature itself, an idea not yet reflected in the Western legal tradition. Has the process already stalled before it has really started?
Another challenge is the question of whether the time is ripe. Governments around the globe already struggle to put the hundreds of existing environmental agreements they have signed up to into reality. Some critics ask whether it would not be more fruitful to focus on stepping up implementation, identifying the funds necessary to put in place what has already been decided, working with governments to build up their capacity and expertise on environmental issues, and developing new environmental rules for the most pressing issues such as plastic pollution. They are afraid that another international process will not change things on the ground while tying up governments in another round of negotiations.
And where is civil society in all of this? For most of us, the Pact is both a risk and an opportunity. In the current political climate, I am afraid that long fought for principles are watered down rather than strengthened. Progressive governments may not be strong enough to argue against Trump, Putin, Erdogan, Maduro, Assad and – most recently – Bolsonaro. And yet, there is hope that a Global Pact for the Environment may ultimately help those who suffer from environmental harm and strengthen environmental defenders whose lives are under threat. We hope that it may help us to hold polluters accountable and to create new obligations for governments and businesses. We hope it may strengthen environmental democracy around the globe. As Marcos Orellana from Human Rights Watch argues, the pact “will give those exposed to mercury in artisanal gold mines in the Philippines, those poisoned by soot in Piquiá de Baixo in northeastern Brazil, those contaminated by lead in Kosovo, and activists attacked for protecting their environment and lands, the tools and political leverage they need to defend their rights”.
So, of course, we will advocate for a Global Pact for the Environment that can bring the legal framework for environmental protection and environmental democracy to a whole new level. I welcome the words of those political leaders who have called for the inclusion of civil society into the process. The process will only be a legitimate one with strong and meaningful civil society participation. But NGOs also need supporters who are willing to fund such work.
If the process is successful, the Global Pact for the Environment could underscore the importance of legally binding instruments in environmental protection. It could close gaps and inconsistencies in international environmental law. It could turn important principles into rights, including climate justice and intergenerational equity, the rights of nature, the duty of care for the environment, the precautionary and the polluter pays principle, environmental democracy – and, last but not least, the right to a healthy environment.