“We are in a world in which global challenges are more and more integrated, and the responses are more and more fragmented, and if this is not reversed, it’s a recipe for disaster.”[1]Contemporary environmental challenges – such as climate change, the preservation of biodiversity, or the overexploitation of natural resources to only cite a few –transcend national boundaries and require coordinated action by states.
To this end, in the last decades, public international law has developed to increasingly encompass environmental matters. However, its rigid bureaucratic process tends to question its capacity to deal with environmental issues. In order to evaluate how relevant the development of international law is in instigating changes in environment-related issues, we emphasise three points: (i) the development of international law is an essential tool in regulating environmental matters; (ii) the limitations of its holistic regulatory framework; (iii) the diverse actions and responsibilities needed to fill the environmental governance gap.
The development of international law: a key tool to regulate environmental matters
Since 1972 and the Stockholm Conference – which marked the first coherent and concerted environmental effort – environmental matters have become more and more present on the international stage and environmental rights have been increasingly consecrated in treaties. In 2015, the Paris Agreement is the most recent example of this will to tackle global environmental issues such as climate change through international law.
Since May 2018, the “Towards a Global Pact for the Environment” Resolution by the United Nations General Assembly has been under negotiation. It represents an overarching legal instrument that could further the protection of the environment. The Pact aims to be a founding text that would enshrine rights and general principles regarding the environment (in the manner of the Universal Declaration of Human Rights). For the time being, such a text does not yet exist: there exists on the one hand political declarations such as the Rio Declaration, but without any binding reach; or, on the other hand, very specific and sectoral treaties, not promoting general principles and rights, highly technical and not easily accessible by every citizen.
The adoption of such a treaty is crucial to strengthen environmental protection. Indeed, recent decisions have emphasised the law’s pivotal rolein enforcing already existing environmental policies.[2]The impact of the adoption of such a Global Pact would be very concrete and practical, as it would provide a strong basis for legal action, especially in countries where these rights are not yet enshrined. One could then imagine that a proliferation of actions would ensue. Take, for example, the Urgenda case in the Netherlands where citizens are legally obliged to adopt more restrictive measures on CO2 emissions on the basis of Article 2 of the European Convention on Human Rights consecrating the general principle of the right to life (later stretched by the Court to find a right to a healthy environment).
International environmental law: a not so holistic framework
Sometimes, a treaty is not the best solution to deal with an international issue. Negotiating a treaty implies a certain bureaucracy, which adheres to rigid contracting and sovereignty costs, and very little room for manoeuvre and compromise. When it comes to very sensitive and pressing issues such as the environmental ones, it can be very difficult for States to reach an agreement. A striking example of the limitations of international law can be found in the example of plastic pollution in the oceans. In this regard, a “plastic treaty” will, in fact, be more effective than the actual fragmented regime to regulate plastic pollution in the oceans. However, in order for it to be put into action, it would need to be ratified by the international community. As such, consensus has not yet been reached on this idea.
Moreover, another flaw in international law lies in its inherent structure: it has been designed by States, for States, and thus non state-actors – such as corporations –cannot be bound by such legal instruments. In this regard, multinationals, subject to national law, often choose to carry out their activities through subsidiaries in countries that are not parties to international environmental agreements. Given the growing international importance of enterprises and the fact that their activities can have a greater impact on the environment than States, one could argue that it is essential to extend international law and to address this environmental governance gap.
Filling the environmental governance gap: the need for diverse actions and responsibilities
The need to regulate corporate activities has led in particular to the development of the concept of corporate social responsibility and soft law instruments. Such principles, void of the legally binding force of law, are directly addressed to corporations to provide them with clear guidelines and collaborative platforms to integrate sustainability in their day-to-day operations. This new and less state-centric trend in environmental governance is also highlighted in the implementation of Agenda 2030, calling for all society to contribute to the achievement of the Sustainable Development Goals. Beyond the preconceived idea that “soft” means “weak”, soft law initiatives such as the OECD Guidelines for Multinational Enterprises or the UN Global Compact are widely accepted and used in the private sector, answering a growing need to engage in more sustainable activities. Soft guidelines for corporations work hand in hand with international law to achieve better environmental governance and it is essential to develop and promote them.
Finally, the power lying in individual voices should also not be overlooked when it comes to pointing out the flaws in the international legal system and instigating changes to further environmental protection. Recently, major corporations in the fashion industry –under the pressure from a citizens’ movement – have made statements to stop working with supply chains exploiting Uyghurs in concentration camps in China. The same individual responsibility and activism on environmental issues is needed to drive major changes where the international system is failing. In this respect, Greta Thunberg is the perfect example of the scope that individual actions and citizen’s movement can have on the international scene.
A call for a stronger corporate responsibility framework
The development of new rules of international law, and the enforcement of existing ones, are crucial in furthering environmental protection. However, we cannot wait for international law to catch up on every issue, knowing how long it takes for a possible agreement to be set up and accepted. Moreover, the inadequacy of international environmental law to deal with some major actors on the international stage is calling for a stronger corporate responsibility framework. Last but not least, citizens’ voices, and especially those of youth, would be determinant to winning the fight for better environmental governance.
[1]Antonio Guterres, Secretary-General of the United Nations, at the World Economic Forum in Davos on 24 January 2019.
Written by Laetitia Aumont, co-authored by Davide Grison and Mathilde Cournut.
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