By Nathan Lobel
UN officials, policy makers, civil society leaders, and academics converged at Columbia University on Wednesday, September 20 to discuss efforts to promote a Global Pact for the Environment. The day prior, French President Emmanuel Macron formally introduced the Pact at the United Nations with the support of leaders from China, India, Egypt, Poland, Mali, Bolivia, Fiji, and Gabon, among others. The Global Pact for the Environment aims to create a legally binding “umbrella text” for international environmental law that would establish a universal right to a healthy environment.
Columbia University professor Jeffrey Sachs, Special Advisor to the UN Secretary General on the Sustainable Development Goals, opened the Conference by addressing the elephant in the room—President Trump’s recent promise that the U.S. would withdraw from the Paris Climate Agreement—noting that “no country has a right to withdraw from international responsibility and international law.”
Indeed, “the Paris Agreement is only the beginning of the story, not its end,” followed French Minister of Ecology Nicolas Hulot, in a call for more ambitious efforts to protect the planet. Laurent Fabius, president of the Constitutional Council of the French Republic and the former president of COP21, who presided over the launch of the Pact in Paris in June, pitched the Pact as enshrining an overdue third generation of fundamental rights, after the UN Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, ratified in 1966. In addition to creating these rights, Laurence Tubiana, CEO of the European Climate Foundation, commended the Pact for recognizing the links between environmental issues like biodiversity loss, food security, and climate change, which present law largely treats as separate.And Carlos Sallé, director of Energy Policies and Climate Change for Iberdrola, the conference’s sponsor, praised the Pact for providing legal incentives to unleash the force of the private sector to achieve the sustainable development goals.
“The Paris Agreement is only the beginning of the story, not its end.”
The Global Pact for the Environment was drafted by a group of more than 100 experts from around the world, coordinated by Le Club des Juristes, a French Think Tank. Yann Aguila, chair of the Environmental Law Commission of Le Club des Juristes, oversaw that process. In the wake of hurricanes Harvey and Jose, Aguila queried how many disasters, extinctions, wars, and refugees it would take for the governments to address the environmental and social crises we face. Nevertheless, he remained determined: “We ask those who think that the Pact for the Environment is impossible not to disturb those who are trying to work.”
The first panel, moderated by Sabin Center on Climate Change Law director and Columbia professor Michael Gerrard, addressed the legal case for the Pact and the provisions that drafters should include. University of Geneva professor Laurence Boisson de Chazournes lauded the Pact as a much needed document to unify the sprawling web of existing environmental law with core principles. To Naoko Ishii, CEO of the Global Environmental Facility, the Pact (and efforts to promote it) provide the opportunity for true system change on sustainability.
Professor Maxine Burkett of the William S. Richardson School of Law agreed that a holistic reorientation of international priorities is needed to adequately protect people and the environment, and hoped that the Pact could catalyze a green audit of other areas of international governance, for instance on trade, investment, and intellectual property. By her account, such a “green audit” in turn could have important implications for global equity and solidarity. “If we look at all governance through more elaborate and precise understanding of the environment,” she said, “it could foster deeper trust and solidarity between global north and south, and south-south.” Mariam Wallet Aboubakrine, chair of the UN Permanent Forum on Indigenous Issues, echoed Burkett’s desire to increase global equity, and extolled the Pact’s potential to improve protections for indigenous peoples.
But Columbia Law professor Sue Biniaz, formerly the principal State Department lawyer on climate change negotiation, questioned some of the core premises of the Pact. Noting the vast diversity of environmental problems, Biniaz wondered whether specifically tailored sectoral agreements, like the Paris Climate Agreement, might be more effective than an “umbrella” agreement. Together with David Rivkin, the former president of the International Bar Association, Biniaz also questioned the utility of having the Pact codify principles in hard rather than soft law. The two lawyers argued that an agreement based in soft law would nevertheless guide jurisprudence and alter private sector behavior, but would win broader participation from liability-averse states.
On the next panel, moderated by professor Maria Ivanova, director of the Center on Governance and Sustainability at the University of Massachusetts, Boston, speakers pushed back on these criticisms. By shifting their frame of analysis to center on fundamental rights, the panelists found substantial agreement on the Pact’s necessity. Marcos Orellana, director of Environment and Human Rights at Human Rights Watch, argued that the Pact could provide much needed accountability for those suffering from environmental harms by creating a universal right to a healthy environment—now a glaring gap in the international human rights framework.
“We ask those who think that the Pact for the Environment is impossible not to disturb those who are trying to work.”
Because of this, Fernando Carrillo Flórez, Attorney General of Colombia, said that he envisioned the Pact to be something like an international constitution. But, for the Pact to achieve this, he stressed the importance of building consensus and political will among states to facilitate buy-in. Director of the Columbia Law School Human Rights Institute Sarah Cleveland agreed that the Pact’s promoters should consider other impediments to impact besides only whether the Pact will be legally binding. She cautioned that, practically, “an agreement that is legally binding and one that is judicially enforceable” are related but distinct. For the Pact to succeed, it must include compliance incentives and accountability institutions. The panelists concluded, though, that if the Pact could achieve all that it promises, it would have important implications not only for ecological health but also for economic inclusion and democratic institutions.
During the final panel on the path forward for the Pact, moderated by professor Teresa Parejo-Navajas of Universidad de Carlos III Madrid, UN Climate Change Secretariat senior director for Intergovernmental Affairs Halldór Thorgeirsson urged the Pact’s promoters not to allow legalistic debates to distract from the Pact’s potential to carry substantial moral and normative force. For his part, Manuel Pulgar-Vidal, World Wildlife Fund head of Climate and Energy Practice, affirmed the Pact’s holistic approach to international governance, noting that, too often, international environmental law has been unable to evolve because it is too granular, with statutes written with a mind only to specific problems. Instead, a rights-based approach that allows for evolution and flexibility over time like the rest of the human rights framework would greatly strengthen environmental protection in the long-term.
From there, International Union for the Conservation of Nature president Zhang Xinsheng re-grounded the discussion in what is at stake in the absence of environmental governance reform, pointing to a current rate of extinction one thousand times faster than the natural rate. In order to get the Pact approved at the UN, though, Earthjustice senior strategic advisor Peter Lehner and UN Habitat executive director Joan Clos emphasized that it will be essential for civil society groups and sub-national governments to join efforts to promote the Pact. As Thorgeirsson reminded, “States do not always lead. Without the support of non-state actors, we would never have had the Paris Agreement.”
Professor Sachs, who presided over the conference with Fabius, concluded the day on an optimistic note. “President Macron has given us a timeline for the Pact to be approved by 2020,” he reported. “By international governance standards, that’s tight. But by the standards of the crises that we face, it is absolutely reasonable and necessary. And I’ll make a bold prediction: By 2020, we will have a Global Pact for the Environment, and it will make a very big difference.”
Special thanks to Alaya Boisvert of the David Suzuki Foundation for note-taking support.