Revue Européenne du Droit
A Martian at the United Nations or Naive Thoughts on Global Environmental Governance
Number #2
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Number #2

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Yann Aguila , Marie-Cécile de Bellis

21x29,7cm - 186 pages Issue #2, Spring 2021 12,90€

“The higher you go, the further you can see” says a Chinese proverb. So let us imagine, that a Martian comes to observe the Earth and its inhabitants. What would he think, from his flying saucer, of the habits and customs of this weird species in full expansion: human beings? How would he judge the state of the planet and the effectiveness of global environmental governance?

Let us tell the story of a Martian, but a Martian who was a lawyer – and who loved the Earth 1 . He had first come here 50 years ago, on the occasion of the 1972 United Nations Conference on the Environment in Stockholm, and had been coming back regularly since this date.

The Martian had observed the Earth for a long time, bewildered by the extraordinary degradation of the state of the environment. All the indicators were getting worse: the increase in air pollution, the spread of plastic in the oceans, the irremediable decline in biodiversity, climate change, melting ice, and the increase in extreme meteorological events. The Martian was also disturbed by the place occupied by human beings on this planet and by their capacity to colonize all ecosystems. In 1950, the world population was reckoned at nearly 2.6 billion people. Fifty years later, in 2000, it had more than doubled to just over 6 billion. By 2020, it had grown to 7.8 billion. The impact of the existence of the human species on the planet was such that humans themselves had identified a new era in the geological history of the Earth, in which humans had become the main force of planetary change: the Anthropocene.

The Martian had thought he could be reassured, for a short time, in 1992, during the Rio Earth Summit. Finally, he thought, the time had come for awareness! The Brundtland report had just drawn up in 1987 a dark, but fair picture of the situation. There was no longer any room for doubt: Humankind was now aware of his enormous capacity to modify the natural balance of his planet and to lead his environment towards a state endangering his living conditions on Earth, and even his own survival. In Rio, the United Nations had therefore adopted two major international conventions, the Framework Convention on Climate Change (UNFCCC) and the Convention on Biological Diversity (CBD).

Nevertheless, in 2015, the Martian had returned to Paris, the place where the “COP 21”, the 21st conference of the parties of the climate convention, took place. Since 1992, global greenhouse gas emissions, far from being reduced, had continued their inexorable rise, increasing by 60%. Worried, the Martian wondered then how these small human beings, who had so much deteriorated their environment, were going to organize to react. From his spaceship, he observed… So, what were the humans doing in these days of December 2015? They were sitting around a table and talking… Among 193 states, they were talking and talking, day and night. Like at the Copenhagen Summit in 2009, like at every COP, for two interminable weeks, the states were discussing. Negotiations continued until the last day, and even the last night. Like in a movie, until the end, the suspense remained at its height: were we finally going to get an agreement? Finally, after the conference had been extended until the next day, in the early morning of December 12, 2015, the president of the conference, his eyes surrounded by circles, raised his hammer and struck, to the applause of the enthusiastic audience: “We have an agreement!”

Was such a decision-making process rational? Was it serious? Was it worth the stakes? Was there not a huge gap between the seriousness of the ecological crisis on the one hand and the inefficiency of governance methods on the other?

These were the thoughts that ran through the mind of our Martian friend. Then, he undertook to meet with the Secretary-General of the United Nations to try to better understand. His objective was to draw up a small report aimed at explaining to the Martian authorities the situation on Earth, in three points 2 : first, an inventory of the difficulties of global environmental governance; second, a diagnosis, to identify some of the causes of these difficulties; finally, some naive lines of thought to try to help set up a more efficient and fairer system of global governance.

1. Observation: the dual failure of global environmental governance

The Martian then went to the United Nations headquarters in New York. The Secretary-General of the United Nations warmly welcomed him in his office and indicated that he was ready to answer his questions. He immediately shared with him his 2018 report that was specifically devoted to “Gaps in International Environmental Law”. In it, the Martian could find a complete diagnosis of the situation: absence of shared and binding principles, fragmentation of international environmental law characterized by a general lack of coherence and synergy between sectoral regulatory frameworks, fragmentation of international institutions, difficulties of implementation, difficulties for courts and tribunals to enforce existing law, etc 3 .

Although global environmental governance had produced some major successes such as the Paris Agreement, it seems in fact to be marked by the inevitability of a double failure: on the one hand, in relation to the development of ambitious new standards (A); on the other hand, with regard to the application of existing standards (B).

1.A. The tragic inability to adopt ambitious new standards

The Secretary-General of the United Nations first noted some positive aspects: since the Stockholm conference in 1972, many international texts in relation with environmental issues had been adopted.

However, the Martian noted that it seemed that these texts fell into two categories: either ambitious texts but falling under soft law, not really binding (the Aichi Biodiversity Targets in terms of biodiversity, the Paris Agreement on climate change); or binding agreements but limited to very technical and sectoral fields (waste, hazardous materials, pollution from ships). The states seemed unable to agree on texts that were both ambitious and mandatory.

Yet several ambitious projects had emerged during this period that could have led to salutary outcomes in favor of the global environmental governance. Three initiatives vividly illustrated the inexorable failure of ambition.

1/ The project for a World Environment Organization

Firstly, the creation of a World Environment Organization was suggested in the early 2000s. The aim was to give new impetus and unity to global environmental governance, which is fragmented among nearly 20 different institutions and more than 500 multilateral treaties. The idea was to give the environmental field a dynamic similar to that initiated by the creation of the WHO in the area of health or the WTO in international trade. The project was presented at the Johannesburg Earth Summit in 2002 and was strongly supported by several heads of state. Everyone remembers the words of French President Jacques Chirac at this Summit to underscore the need for action: «Our house is burning and we are looking elsewhere». Discussed throughout the decade, put back on the negotiating table several times, the project was finally abandoned in 2012, at the so-called “Rio + 20” conference, in favor of a simple strengthening of the United Nations Environment Programme (UNEP).

2/ The International Environmental Court project

Secondly, the proposal for an International Environmental Court has been supported by several initiatives, such as the International Court of the Environment Foundation, founded in 1992 by the Italian Professor Amedeo Postiglione, and the International Court of the Environment Coalition, created in 2009. In three decades and despite several proposals, no project has ever been completed. However, there was no lack of good will, and the proposal seemed relevant. As Sir Robert Jennings, Judge and then President of the International Court of Justice, put it, the environment being a particularly specialized and eminently international field, a control structure at the international level seems the most relevant solution 4 . Yet, the political will has not been there: states seem to seek avoidance of a mechanism that could make international environmental law punishable and coercive.

3/ The project of a Global Pact for the Environment

Thirdly and finally, the project of a Global Pact for the Environment has also faced reluctance. The initiative aimed to enshrine in a general text the fundamental principles of international environmental law. The idea is not new: it was already in the Brundtland Report of 1987. It was taken up by the IUCN, which in 1995 drew up a Draft International Covenant on Environment and Development. In turn, the Club des juristes proposed the adoption of a Global Pact for the Environment in 2015. The initiative initially met with some success: in 2017, President Emmanuel Macron took it to the UN, on the basis of a preliminary draft drawn up by an international network of lawyers chaired by Laurent Fabius, President of the French Constitutional Council and former President of COP21. On May 10, 2018, the UN General Assembly adopted a resolution opening the negotiations, “Towards a Global Pact for the Environment”, voted by 143 states for and – only – 5 against. However, discussions then stalled during the State Working Group sessions at UNEP in Nairobi. Although these negotiations are still underway, they have given way to a project with much less ambition, since the states have chosen to move towards a simple “Political Declaration” with no legal value, far from the initial project of an environmental quasi-constitution.

4/ A history full of failures

The Martian had to face a truth: this ambitious triptych of governance (world organization, court of justice, constitution) had come up against the fears of the states.

There were many examples of failures, such as President Rafael Correa’s intelligent and innovative project, in which he proposed that his country, Ecuador, renounce oil exploitation in part of the Amazon forest in exchange for international aid. This idea unfortunately did not have the expected success with the rich countries. Likewise, the history of climate negotiations is full of setbacks, from the announcement in 2001 by the President of the United States of his country’s refusal to ratify the Kyoto Protocol, to the failure in 2009 of the COP 15 in Copenhagen, which was supposed to adopt a new international climate agreement to succeed that Protocol. It was not until 2015 that such an agreement was adopted in Paris at the COP 21 … until the announcement in 2016 by the President of the United States of his country’s withdrawal from the Paris Agreement…

There is a tragic dimension in the global governance of the environment, thought the Martian. As early as 1992, in Rio, everything had been said. The urgency to act had been established, a set of principles guiding global action had been recognized, and solutions had been discussed. However, as soon as an ambitious project was proposed, it seemed to come up against an invisible wall. The Secretary-General of the United Nations himself had to admit: the current situation was becoming desperate. What is the point of committing oneself if the outcome is known in advance?

Thus, concluded the Martian, something is wrong in the kingdom of human beings.

1.B. The difficulty of applying existing norms

Our Martian friend, wishing to introduce a touch of optimism, observed that, in spite of everything, many texts had been adopted. He then inquired about the way in which the states were applying the existing agreements. The afflicted Secretary-General, gave him a disappointing answer: international environmental law was suffering from a recurrent lack of implementation. In many cases, standards were simply not mandatory. In others, they were mandatory, but their violation was not punished.

1/ A collection of soft law standards

First, many standards are only soft law: they are merely non-binding objectives. This is the case for the «Aichi Biodiversity Targets», set within the framework of the Convention on Biological Diversity. Adopted by the Conference of the Parties of this convention in October 2010, in the city of Aichi, Japan, they were to constitute the new «Strategic Plan for Biological Diversity 2011-2020» for the planet. Finally, thought the Martian, human beings had taken ambitious measures! «Have these objectives been respected?» he asked. The United Nations Secretary-General then put another report on the table: the 5th report on the Global Biodiversity Outlook, produced in 2020 by the Secretariat of the Convention on Biological Diversity 5 . Published ten years after the adoption of the Aichi Targets, on the eve of the adoption of the new global framework for biodiversity at the COP 15 in Kunming (China) in May 2021, this report should serve as the basis for the next Strategic Plan for the post-2020 period. The conclusion is indisputable: almost no objective has been achieved. Out of the 60 criteria for the success of the objectives, only 7 can be considered fulfilled.

2/ Mandatory standards often deprived of effective systems of sanctions

Second, even where international standards are mandatory, there is often a lack of effective sanctions. A prominent example is the 1997 Kyoto Protocol, adopted under the Framework Convention on Climate Change. Canada’s failure to meet its commitments to reduce greenhouse gas emissions (it was the largest supplier of crude oil to the United States) took the risk of sanctions under the Proto-col. In 2006, at the 12th United Nations Climate Conference in Nairobi, Canada had wanted to revise the Protocol, considering the targets imposed “unrealistic and unattainable”. Finally, in 2011, after the election of Conservative federal representatives, Canada announced that it preferred to withdraw from the Kyoto Protocol. To avoid sanctions, Canada chose a more economical and practical option: mere withdrawal.

The Martian did not understand: when two individuals sign a contract, they are bound by their promise, they cannot withdraw. In the event of a breach, one can go to court, can’t he? Why do states, which commit themselves to an international convention, have the right to withdraw? Why would it not be possible to take them to court if they do not respect their commitments? This diffi-culty, the Secretary-General of the United Nations replied, stems from the very nature of international law, which is based on the consent of states. The Martian then wanted to know more about the very basis of international law.

2. Diagnosis: the theory of auto-limitation of states and the Buffet Syndrome

The foundation of international law, in the traditional conception, is based on the theory of auto-limitation of states (A). In practice, however, this doctrine results in the primacy of the national selfish interests of states over the common good, which can be referred to as the Buffet Syndrome (B).

2.A. The theory of auto-limitation of states

On Earth, explained the Secretary-General of the United Nations to his Martian visitor, the state has gradually become the preferred form of political organization of societies. This is true internally, to organize social relations within a people. It is also true internationally: states are at the heart of global environmental governance.

1/ The paradox of sovereignty subject to law

In the traditional conception, international law is made by states and for states. This view is often referred to as the “Westphalian system”, named after the 1648 Treaties of Westphalia that ended the Thirty Years’ War in Europe. Since then, the organization of international society has been based exclusively on relations between equal and sovereign states. Historically, continued the Secretary-General, this system was a step forward: it has made possible to introduce a little bit of order into international relations that were, and still are, too often marked by anarchy or war. It is based on a major principle: the sovereignty of states.

“But,” the Martian asked, “if each state is sovereign, if it does not recognize any authority superior to it, how can it be subject to law?”. “It is indeed a delicate question”, the Secretary-General acknowledged: “how can the sovereignty of states be reconciled with the binding nature of international law? Our jurists have settled it through the ‘auto-limitation theory’. It is true that a sovereign state cannot submit to an external and superior will. On the other hand, it can freely decide, by its own will, to respect the international legal order. The cornerstone of international law, the basis of its binding character, is thus auto-limitation of states. International norms are binding only because states consent to auto-limitation”.

This theory commands both the elaboration of international law and its application.

2/ International norms under permanent negotiation

As far as its elaboration is concerned, this theory controls the sources of international law and, therefore, the decision-making process. International law is essentially a conventional law, a law of contract. Among the various legal instruments, international conventions are favored: because they systematically collect the consent of the states parties, they correspond best to the theory of auto-limitation. Even acts of secondary legislation, i.e., the large family of resolutions and other decisions adopted by the organs of international institutions, are characterized by this conception: although legally, they are unilateral acts, in practice they are acts negotiated between states. They are sometimes wrongfully identified as ‘agreements’ : this is the case, for example, in the area of climate change, with the decision of COP 7 in 2001, known as the “Marrakech Agreement” 6 . It is also true, in the area of health, with the International Health Regulations of 2005, which is sometimes referred to as an “agreement signed by 196 countries” 7 or a “treaty” 8 when in reality it is a unilateral act adopted by a WHO body, the World Health Assembly.

Thus, in global environmental governance, the decision-making process requires the agreement of the 193 member states of the United Nations. The whole process is based on the permanent search for a balance, between consensus and compromise. Diplomats are often facing a dilemma: they must either aim for an ambitious agreement but, in this case, one that brings together only a limited number of countries, or a universal agreement (bringing together many countries), but not very ambitious (states only aligning themselves to the lowest common denominator).

3/ International justice as an option

With regard to the implementation of international law, the theory of auto-limitation extends to the sanction mechanisms: in international law, justice is often only an option. The control mechanisms provided for in most international environmental agreements are more a matter of conciliation than of real sanction. Their applications are not supervised by courts but by administrative monitoring committees, the “compliance committees”, whose powers are reduced. Sanctions, when they are provided for, are often limited to purely declarative acts (“name and shame”). Referral to these committees is generally limited to states and the administration responsible for monitoring the convention: it is rarely open to non-state actors.

This situation leads to important restrictions in the application of existing international law: sanctions in the event of non-compliance with commitments are rare. The convention bodies in charge of monitoring exercise their mission by integrating, consciously or not, the possibility for states to withdraw at any time from the agreement concluded in the event of a major conflict. This is, moreover, as the Secretary-General put it, “the difficulty of my own mission and, more generally, of that of the United Nations”. Faced with states that sovereignly decide whether to comply with the rules of the game, it is all a matter of conviction and diplomacy.

2.B. Pitfalls of the auto-limitation theory: The Buffet Syndrome

The limits of the auto-limitations theory can be illustrated by the Buffet metaphor. They are the reasons for the difficulties in setting up a system of disinterested management of common goods.

1/ States before the Buffet of Natural Resources

In the sharing of global space and common resources, states are like guests at a cocktail party, placed in front of a buffet of food. Ab initio, conscious of the limited nature of resources, everyone willingly accepts the rule imposed by reason and equity, that of equal sharing. In both cases, the mechanism is based on auto-limitation: each person commits to limit their own consumption in order to guarantee access to food for all.

Yet, the theory of auto-limitation clashes with reality. One has to simply look at the actual behavior of the guests at the buffet to be convinced of this: the temptation is great, the food is close at hand… and everyone rushes to the buffet to pile up quantities of food on their plates without worrying about the others. The worst is the justification for this voracious behavior: everyone anticipates that their neighbors will not respect the rule anyway, so it is better to be ahead of them so as not to become a victim.

How can we not think of the buffet when observing the behavior of states in the face of the planet’s limited resources? National appetites are such that the idea of auto-limitations quickly encounters its limits. Frenzied consumption ends up being nothing more than a means to avoid being overtaken by a competing state. If everyone lived as an inhabitant of the United States, 5 planets would be needed 9 .

In reality, the states find themselves dragged into a form of “Red Queen’s Race”. In an episode of Alice in Wonderland 10 , Alice and the Red Queen start a frantic race and yet they don’t make any progress. Indeed, explains the Queen, in this country, everything is constantly changing and so “you have to run as fast as you can to stay in one place”. In biology, the “Red Queen hypothesis” explains the necessity of the evolution of species as a result of a race to adapt 11 . Used in economics to describe competition between companies or in international relations (e.g. in connection with the weapons race between states), this metaphor explains that, in a competitive environment, one need to adapt to survive: he who does not advance steps backwards.

Likewise, in the race for natural resources, states consider their consumption necessary to maintain their ability to compete with other states. Therefore, they are forced to run simply to stay in the same place. The buffet of natural resources thus remains overexploited by states, comforted by the magical thought that the limits mentioned by scientists are only an illusion and that the world is like a double-bottomed box that in reality hides an infinite quantity of available resources. Many eat as if the buffet was unlimited. Thus, when some states turn aware of the resources limits, they seem to eat even more by fear to give advantage to their neighbors. The rule of auto-limitation is not adapted to such a context: it is regarded as an evolutionary disadvantage for those who would apply it.

2/ The absence of a disinterested management system for common goods

Some goods are useful to all mankind: tropical forests, oceans, large rivers, air or even the polar ice caps. However, our system of inter-state governance is failing to put in place a disinterested management of these common goods.

The recent forest fires in the Amazon and in Australia have brought to the forefront the need for action. The Martian visitor himself had heard about them: the damages caused by these fires were visible from his own planet. He therefore wondered about the measures that had been put in place to preserve the tropical forests, reservoirs of carbon and therefore true “green lungs” of the Earth.

Once again, the response of the Secretary-General of the United Nations was disappointing. Admittedly, there was a lot of scientific work on the need for collective governance of these assets. But the “tragedy of the commons”, conceptualized by Garrett Hardin in 1968 in his article in Science, seemed inevitable. Declining the prisoner’s dilemma 12 to the question of goods owned by everyone, this theory explained that individuals adopt strategies that seem rational at the individual level, but that lead to irrational results at the collective scale. For this particular category of goods that benefit everyone, the immediate maximization of individuals’ interest paradoxically leads to a deterioration of the situation on the collective level and a degradation of the good. Overexploitation leads to the destruction of collective property.

Yet projects initiated in this area have failed so far. Even when certain actors play the game of auto-limitation, they are hardly supported by their neighbors.

In 2007, for example, Rafael Correa, President of Ecuador, made an innovative proposal to manage a national portion of the Amazon rainforest that includes an oil field. His failure shows that such a system of auto-limitation cannot work without the solidarity of rich countries with developing countries.

Ecuador had discovered large oil field in the Yasuni Park 13 , classified as a UNESCO World Heritage Site and listed as having one of the greatest biodiversity per square kilometer in the world. This raised the question of balancing environmental conservation against national economic interests, especially the needs of a developing country.

President Correa then proposed an original mechanism: Ecuador agreed to give up oil exploitation in the park in exchange for international aid: 3.6 billion dollars over 12 years, or half of the revenue that would be yielded by the exploitation of Yasuni’s oil. This contribution made it possible to safeguard a part of the Amazon, avoid greenhouse gas emissions and help the country in its energy transition, without penalizing its economic development.

This initiative, which was to “inaugurate a new economic logic for the 21st century” in the words of Rafael Correa when he presented his proposal to the United Nations in 2007, quickly received $100 million in pledges, to the applause of states and environmental protection associations. But of the $3.6 billion requested in total, only $13.3 million was provided – only 0.37% of the total. Without the promised financial counterpart, the country decided to start exploiting the deposits located under the Yasuni Park.

The Martian visitor was taught that auto-limitation is nothing without solidarity. More than ever, according to the formula of Mireille Delmas-Marty, it was necessary to pass from solitary sovereignty to solidarity sovereignty 14 , that is to say, a sovereignty in which the states do not limit themselves to the defense of their national interests, but are also concerned about common goods.

3. Food for thoughts

Logically, once the observation and the diagnosis had been made, the Martian and the Secretary-General of the United Nations kept speaking by imagining, with a certain naivety, a few possible solutions. These seemed to them to be structured by two main ideas: the return to values (A) and the recognition of a global public interest (B).

3.A. The return to values

International environmental law is too often limited to a technical approach. “Perhaps we have forgotten that law is a vector of values?” thought the Secretary-General.

1/ The technical approach of international environmental law

When we look at the state of international environmental law, there is a striking discrepancy between, on the one hand, the failure of the ambitious projects mentioned above (World Environment Organization, International Court of the Environment, Global Pact for the Environment) and, on the other hand, the proliferation of technical and sectoral texts (on waste, chemicals, etc.). This could be seen as a cause-and-effect link: in the absence of agreement on major issues, it is preferable to discuss specific and technical subjects. This is, moreover, a departure from environmental law in general, including at the internal level: aimed at governing a set of industrial economic activities, and based on a scientific background, it quickly tends to become a technical matter, made up of annexes, numerical tables, classifications, statistics and chemical formulas. In international matters, this tendency seems to be exacerbated by the heavy procedures and bureaucracy of international organizations.

This pragmatic vision has certain advantages. Some advocate a “tailor-made” approach to international environmental governance: each specific problem must be addressed by a specific sectoral agreement. This approach allows to avoid overly abstract debates on values and to focus on fixing concrete issues. It also sometimes makes it possible to build majorities with ad hoc coalition depending on the issues, with some countries wishing to make progress on one subject but being more reluctant on other.

We can draw a parallel with the European Union construction: this was initially based on a very concrete and given project, the creation of a single market for coal and steel.

This method can be effective in the short term. It can work within the narrow scope of the problem under consideration. However, it has its pitfalls.

First, it has an institutional consequence: the fragmentation of global environmental governance. While a specific convention addresses a specific problem, it should not be forgotten that each convention is linked to an administration. Indeed, many conventions have their own monitoring bodies: a Conference of the Parties (COP), an executive secretariat, bureau, committees of experts, etc. A convention is not only a text, it is also often an administration. For example, alongside the UNEP administration in Nairobi, there is the secretariat of the United Nations Framework Convention on Climate Change in Bonn, or the secretariat of the Convention on Biological Diversity in Montreal. Some of these administrations have several hundred employees. The result is a multiplication of costs and cumbersome procedures. Each of these conventions has also its own COP, regularly bringing together all the states Parties. It is a bit like, in domestic order, creating a specific government for each law to follow up on it.

Above all, as the history of the European Union has shown it, sooner or later there will be a need to establish common values.

2/ A need for common values

By sticking to technical rules, the overall vision, the coherence of the system and, even worse, the final objective of these rules are lost.

Lawyers are well aware of the usefulness of general principles in a legal system. It is not simply a matter of writing beautiful statements of law. Principles are the foundations and cement of the system, they keep the building upright. When the rules become difficult to apply, when the people they are meant to serve find it difficult to meet them, they will have to remember the underlying reasons why they consented to, otherwise the temptation to leave will be great. Let us recall Canada’s withdrawal from the Kyoto Protocol. Or, in the case of the European Union, the departure of the United Kingdom, which may related to an initial misunderstanding about the true nature of the European project. It is a bit like being in a couple: when difficulties arise, we need to recharge our batteries in shared values.

The law is a vector of values and these values are translated into legal principles 15 . This is why in a state, the legal order is based on a set of principles, often enshrined in a constitution. The consecration of these principles in a text of a constitutional nature has the particular advantage of anchoring them over a long period, thus they are sacralized and protected from changes of majority.

International law is no exception to this requirement.

Moreover, the Secretary-General recalled, the founding fathers of the United Nations were not mistaken. In 1945, they had started from the beginning: values. This was reflected in the first words of the United Nations Charter: “We the peoples of the United Nations…”. What audacity, carried by the hope of a new world! How can we not  make the connection with the first words of the American Constitution “We, the people of the United States…”. And how can we not feel sorry, by comparison, for the current lack of ambition of global environmental governance and its purely technical approach?

In reality, if we judge a tree by its fruits, we must face the facts: after decades of technical sectoral treaties, this approach has failed to contain the decline of biodiversity and global warming.

Does not the worsening of the ecological crisis over the last 50 years demonstrate the failure of the small steps policy? By wanting to evolve only gradually, we end up going backwards. The measures taken remain far below the necessary scale to implement real change. They are limited to marginal corrections and unimplemented objectives, kept within the flexible and minimal framework of global environmental governance as it was created several decades ago. The world is aware of the scale and severity of the ecological crisis, yet actions are not commensurate with the enormity of the looming catastrophe.

Despite all the good will of diplomats and officials of international environmental organizations, despite the tremendous energy they devote to multilateral environmental agreements, they are not succeeding in curbing the crisis. The reason lies in the very conception of global environmental governance. In the absence of common principles, it is today a building without basement. Like a building that would have been built starting directly from the 2nd floor. As a country that would have a set of national technical laws but no constitution.

This is the goal of the Global Pact project: to create a constitutional moment, enshrining the fundamental principles of global environmental governance 16 .

The Martian listened attentively to the Secretary-General. Then his eyes lit up: “I understood” he said, “the principles are like the stars: you can’t touch them, but they show the direction”.

3/ The principle of Common But Differentiated Responsibilities (CBDR): the tool of a contextualized universalism

It is true that each culture produces its own system of representation, so it is difficult to identify a set of values that could be valid everywhere and at all times. This is why, notes Monique Chemillier-Gendreau, “many obstacles still stand in the way of common values that would make the realization of a truly international law possible” 17

However, from this point of view, the ecological crisis could be the chance of international law.

First of all, environment proposes a value on which the peoples of the whole world, whatever their history, culture or religion, should be able to agree: the need to preserve the planet, their common home. Even if there are differences in approach depending on the country, the awareness of an interdependence between Man and nature is gradually spreading worldwide.

Secondly, environmental law offers an interesting matrix principle in the search for a balance between universalism and pluralism: the principle of common but differentiated responsibilities.

First enshrined in 1992 in the Rio Declaration on Development and Environment, this principle aims to take into account “the different contributions to global environmental degradation” (Principle 7 of the Declaration). It expressly affirms the double face of the responsibility of states: certainly, it is common, so that each state must assume a share of the burden; but it is differentiated, leading to heavier obligations on rich countries, given their historical share in the pollution of the planet.

It is mainly in the area of climate that this principle has been enshrined. Taken up in the Paris Agreement, the principle was already included in the 1992 Framework Convention on Climate Change, which stated in its preamble that “the global nature of climate change requires countries to cooperate to the maximum extent possible” while specifying “in accordance with their common but differentiated responsibilities, respective capabilities and economic and social conditions”.

This demand for differentiation according to the diversity of concrete situations is reminiscent of the idea of distributive justice: according to Aristotle, true justice consists in taking into account de facto inequalities, in order to proceed with a distribution of goods proportionate to the talents and capacities of each person.

The principle of common but differentiated responsibilities makes it possible, on the one hand, to grant the general objective of protecting the environment and, on the other hand, to take into account particular situations. In this respect, it could prefigure a more global method for the law of globalization, in that it makes it possible to reconcile unity and diversity: on the one hand, the will to unite around common universal principles; on the other, anchoring in reality and respect for the diversity of situations.

3.B. Recognition of a global public interest

The Secretary-General of the United Nations reminded the Martian that sovereign states were, until now, the only decision-makers of international norms. It followed that the international normative system was almost exclusively based on the representation of the national interests of states. Unfortunately, lamented the head of UN diplomacy, in such a system, no one had an interest in changing the situation. The few states that wanted to carry out ambitious environmental reform faced a convergence of opposition from countries in the North and the South. The developed countries were threatened of being held responsible for the historical pollution and destruction from which they had benefited and did not want to have to make an economic contribution commensurate with these benefits. Many developing countries were betting on their still unexploited natural resources to accelerate their development and allow their people to access the comfort that the populations of developed countries took for granted. As in a kind of political and economic pax nuclearis, no one wanted to create a source of liability that could be immediately alleged by another state.

The alien visitor was astonished by this exclusivity granted to states. He was well placed to know that there could be external and superior interests to those of the states.

1/ The existence of a global public interest, distinct from the particular interests of states

It has become clear that the multiplication of cross-border crises calls for a global response. The ecological crisis was not enclosed within national borders. A state alone, however powerful it may be, cannot fight global warming or the sixth mass extinction of species. The same is true for dealing with the economic crisis, the risk of terrorism or the Covid-19 pandemic.

However, it seems less easy to draw the consequence from this observation: there is indeed a global public interest, which is not to be confused with the sum of the particular interests of states.

This global public interest is the underlying concept for the consecration of a status for “global public goods” or the debates around the notion of “common heritage of humanity”: all these concepts could be founding elements in the reconstruction of a global environmental governance that is consistent with reality.

Admittedly, this common interest is multifaceted. Its content remains undetermined. Depending on the conceptions, it may cover the interest of present generations alone (the community of current inhabitants of the planet) or also include the interest of future generations (humanity) or, more broadly, extend to the interest of the planet as a whole (the planetary community of life).

But, less than the content, what matters at this stage is the strength of the assertion of this legal category: there is a global public interest that is distinct from the collective interest of states, which is merely a juxtaposition of national interests. The collective interest should not be confused with the public interest.

Above all, if this interest is global, we must exhaust the logic and affirm its features: the global public interest is superior and external to the interest of states. Ultimately, such an assertion carries with it a reinterpretation of the notion of sovereignty. It is not about questioning it: sovereignty is critical for states just as freedom is essential for individuals. Yet, it must be seen for what it is: it cannot be absolute. It is relative and has a limit: respect for the global public interest. Moreover, this assertion could provide a basis for the intrinsic force of international law: the binding nature of international norms would not come from the auto-limitation of states, but would derive from the requirements of the global public interest.

A question then arises: who can represent the global public interest?

2/ The difficult representation of the global public interest by states

Given the current state of decision-making in global governance, with states as the main actors, we can first consider entrusting states with the task of carrying this global public interest. This is reflected in Mireille Delmas-Marty’s concept of sovereignty based on solidarity: The underlying idea is that states are certainly sovereign to defend their national interests but also to defend the common interest of humanity 18 .

This consideration of the global interest by the states themselves is both possible and eminently desirable. It can be done in particular by national jurisdictions. In this respect, the French Conseil Constitutionnel rendered a remarkable decision on January 31, 2020 19 . At issue was the ban on the export of certain pesticides to third world countries – a measure passed to protect them. Based on the concept of “common heritage of human beings” enshrined in the preamble of the French Charte de l’Environnement, the Conseil Constitutionnel ruled that environmental protection implies taking into account the extraterritorial effects of activities carried out on national territory.

This solution is pragmatic: in the short term, in the absence of a powerful world authority representing the common interest, it is necessary to ensure that it is taken into account by the national authorities. This mission assigned to the concept of authority is not without recalling the relationship between justice and force in Pascal’s Thoughts 20 .

Above all, one might note that, far from being opposed, the two interests converge: the well-understood interest of the states is largely in line with the common interest. In this respect, if by a kind of blindness to their own interest, some states sometimes favor the short term, by abusively exploiting their own natural resources, they cannot ignore their future interest: the destruction of the environment generates increasing costs that will weigh on all, whether through climate change, the collapse of biodiversity, the droughts of arable land or the depletion of resources. The global productivity loss due to climate change has already been estimated at $2 trillion per year by 2030, according to a recent UN report 21 .

However, experience shows that states are unfortunately not always eager to defend the global public interest. In times of tension, they usually put their own national interest first.

This difficulty is reflected in the U.S. Supreme Court’s cases. In Kiobel in 2013, cited by Mireille Delmas-Marty in the above-mentioned article, a dissenting opinion had suggested that the notion of American interest could be broadened to include the global interest. This opinion, supported by Judge Breyer, was based on the concept of the “enemy of the human race”, established by a 1789 text, the Alien Tort Act, in order to find an extension of the jurisdiction of American courts, at the time to pirates and today to human rights violations committed abroad. But the Supreme Court did not follow this reasoning: according to it, “US Law does not rule the world” 22 .

Similarly, the decision-making process at the United Nations illustrates the difficulties for states to take into account a common interest. In international forums, the prevailing mode of decision-making is consensus. Theoretically, well understood, this method is in line with this perspective: a state that could be reserved on a proposal chooses to silence its opposition and abstain, to the benefit of the common interest. Abstention is privileged over opposition, allowing states that wish to do so to move forward. However, experience shows the limits of the consensus method. This is the case with the discussions on the Global Pact project: while the UN General Assembly resolution opening the negotiations was adopted by an overwhelming majority (143 votes in favor, 5 against), the first round of negotiations in Nairobi in 2019 ended in a stalemate due to the opposition of certain states: the latter, minority but powerful (including the United States and Russia), strongly required that the consensus method be applied.

In another example, Brazil alone managed to block the decision-making process on the 2021 budget of the Convention on Biological Diversity for several weeks – thus jeopardizing the 15th Conference of the Parties on Biodiversity (COP15). This budget must be voted on before December 31 of each year, otherwise the COP Secretariat will be unable to work from the first day of the following year. The process is subject to a tacit agreement procedure in which the silence of the states is tantamount to consent. By breaking the traditional silence, Brazil has unilaterally hindered the decision-making process for the 196 States Parties.

This example shows the risk that the consensus requirement could be diverted from its purpose: initially intended to facilitate the emergence of a common interest, it can be interpreted as a requirement of near unanimity and ultimately lead to a tyranny of the minority.

This method is particularly paralyzing in an international society of nearly 200 states. Admittedly, it is sometimes possible for a group of states to decide to act together without waiting for the other states. But in the field of the environment, inter-state negotiations often have to include all the parties. It is hard to imagine, for example, in the area of climate change, that large countries would not be subject to the collective effort. Thus, the withdrawal of the Paris Agreement from the United States, the world’s largest emitter of greenhouse gases, was a very bad sign for the success of this treaty.

All in all, it is difficult to count on states to put the global public interest ahead of their national interests.

3/ Other ways of representing the global public interest

Although states play a necessary role, it is not sound for them to be the exclusive custodians of the global interest. In the tradition of checks and balances, counterbalances must be put in place to avoid the risks of abuse in the exercise of sovereignty.

The first solution aims at strengthening the role of non-state actors on the international ground.

On this subject, there is a gap between practice and law. In practice, we observe a rise in the power of non-state actors, local authorities, NGOs, scientists, economic actors: all of them are present in international environmental forums. In law, however, they have no real existence in the decision-making process, which does not officially recognize any institution other than states and certain international organizations in the enactment of international standards. Non-state actors are not subjects of international law.

Yet these entities play an important role in the very application of international law. This is evidenced by the tremendous mobilization of American cities and businesses when the United States announced its withdrawal from the Paris Agreement. The United States Climate Alliance was thus created in June 2017, bringing together 24 states and 2 U.S. territories committed to meet U.S. commitments to reduce greenhouse gas emissions. For the first time, non-state actors went so far as to substitute themselves for a defaulting state in order to comply with a treaty that it had signed.

Some of these sub-state actors, even if they are not States, have a strong legitimacy since they represent population groups. This is obviously the case of local authorities, which represent the inhabitants of a given territory. This is also often the case of economic or social associative organizations, which represent intermediary bodies. These can be seen as true institutions, in the broadest sense of the term. By considering these entities as mere individuals, and by excluding them from the international institutional system, global governance ignores their real influence and power of representation. The legal fiction of an international arena populated solely by States is no longer adapted to the reality of the world.

A second solution is to strengthen the role of international organizations. Strictly speaking, they are the ones with a natural vocation to carry the global public interest. However, their role in the normative process is not always clearly affirmed.

First, we can think of giving them more direct powers in the preparation of treaties. In this field, their mission is often limited to technical work, the animation of working groups or the elaboration of action plans: we can mention for example the Montevideo Environmental Law Programme which is managed by UNEP. To go further, why not give the Secretary-General of the United Nations a real power of proposal in terms of treaties? In the current procedure, only the states have such a prerogative. More broadly, why not give the executive secretariats of the various multilateral environmental conventions enhanced prerogatives in the process of developing standards? By analogy with the European Union, one can imagine a plurality of institutions involved in the “manufacture of standards”, each of them representing different interests: the European Council represents the states, and the European Commission, guardian of the Union’s interest, has a power of proposal.

The normative power of international organizations can also be strengthened more directly. Among the various sources of international law, it would be a matter of giving a more important place to acts of secondary legislation, that is, acts directly enacted by international organizations. The deliberative organs of international organizations may indeed adopt these acts by the rule of majority, sometimes qualified majority. Unlike treaties, they do not necessarily require the agreement of all the concerned states. One example is the original mechanism provided for in the WHO “Constitution” (its constituent treaty) for the adoption of the International Health Regulations, an international instrument of a binding nature.

On the one hand, it is adopted by the deliberative organ of the WHO, the World Health Assembly, by a two-thirds majority (Article 19); on the other hand, it enters into force for all Member states, except those that have expressed their refusal within a certain period of time. This subtle procedure, mixing majority rule and consent requirement, is a model and prefigures the type of evolution that global environmental governance could undergo in order to be more effective.

Conclusion

As he was leaving, the Martian noticed a gap. Although he had identified some possible solutions, he had not considered the most difficult question: the art of reform. How could such far-reaching changes be accepted and implemented by the states? Unfortunately, the history of the Earth’s people showed that it often took the occurrence of disasters to provoke deep-seated questioning. It took the shock of the First World War to bring about the creation of the League of Nations. It took the horrors of the Second World War and the Shoah to lead to the adoption of the United Nations Charter and, a few years later, the Universal Declaration of Human Rights. How many extinct species, how many hurricanes, how many climate refugees, how many cities wiped off the map by rising waters would it take the Earthlings to decide to act?

The Martian visitor got up, walked to the door and left the office of the Head of the United Nations. Then, he turned to the Secretary-General and said, as to deliver a final message: “Your planet is beautiful. Seen from the sky, it has no borders”.

The reflections of our Martian friend were undoubtedly too naive. Where reason and a sense of proportion have so far failed to reform global environmental governance, how could a visitor from another planet succeed? Yet, moved by optimism, we sometimes find ourselves believing that such changes will eventually impose themselves, unless by necessity. One begins to hope that one day we will be able to break down this invisible wall against which ambitious policies to protect nature come up.

Some may argue that the present time is not the right time for such a revolution and that the future must be trusted. They may realistically believe that the dream of a world with strong rules of governance is out of reach in the short term. However, it is to be feared that if we wait for a better time to change the model, the Martian will have little to observe next time he passes over the Earth.

Notes

  1. This article is reminiscent of a famous article by Professor Jean Rivero, to which the authors pay tribute (Jean Rivero, ”Le Huron au Palais-Royal ou réflexions naïves sur le recours pour excès de pouvoir”, Dalloz, 1962, Chronique VI, p. 37-40).
  2. The academic rules on the planet Mars favoured indeed the three-part plan.
  3. Report of the Secretary-General, “Gaps in international environmental law and environment-related instruments: towards a global pact for the environment”, December 13, 2018, report A/73/419. The same observations were made in 2015 in the report of a French think-tank, the Club des juristes, on the need to strengthen the effectiveness of international environmental law (report of the Environment Committee of the Club des juristes): Increasing the effectiveness of international environmental law: Duties of States, rights of individuals, November 2015: https://www.leclubdesjuristes.com/le-club-dans-les-medias/communique-de-presse/publication-du-rapport-du-club-des-juristes-renforcer-lefficacite-du-droit-international-de-lenvironnement-devoirs-des-etats-droits-des-individus/.
  4. P. Sands, Principles of International Environmental Law, 2nd Edition, Cambridge University Press, p. 187: “It is a trite observation that environmental problems, although they closely affect municipal laws, are essentially international ; and that the main structure of control can therefore be no other than that of international law”.
  5. 5th Global Biodiversity Outlook Report (GBO-5), available online on the website of the Convention on Biological Diversity: https://www.cbd.int/gbo/gbo5/publication/gbo-5-en.pdf.
  6. See the website of the Framework Convention on Climate Change: https://unfccc.int/lulucf-developments-at-past-cop-and-sb-sessions.
  7. See the website of a Canadian think-tank: https://www.ottawahealthlaw.ca/research.
  8. See the Wikipedia page “International Health Regulations”.
  9. Source: Global Footprint Network.
  10. This moment is taken more precisely from “Alice Through the Looking Glass”, the second part of Lewis Carroll’s famous novel.
  11. The Red Queen hypothesis is proposed by Leigh Van Valen, a 20th century American biologist. In a constantly changing environment, the behavior of one species influences that of others: therefore, to avoid extinction, a species must adapt to the evolution of other species.
  12. The prisoner’s dilemma was proposed in 1950 by Albert W. Tucker, an American mathematician, in the context of game theory. It illustrates the situation in which players would actually have an interest in cooperating, but where, being ill informed in the absence of communication between the players, each one chooses to betray the other.
  13. More than 920 million barrels of oil, or 20% of Ecuador’s reserves, had been discovered there.
  14. See “From solitary sovereignty to solidarity-based sovereignty”, Mireille Delmas-Marty, presentation to the Collegium International, June, 25, 2014 (http://www.collegium-international.org/en/) or more recently in this journal M. Delmas-Marty, « Gouverner la mondialisation par le droit », Revue européenne du droit, September 2020.
  15. Principles fulfil various functions in a legal system: an «interpretative function» (they can inspire the interpretation of certain provisions), a “conciliatory function” (in case of contradiction between norms, principles offer a conceptual matrix that helps to reconcile conflicting requirements) or a “suppletive function” (by providing a legal basis for reasoning, even in the absence of precise rules).
  16. See the Pact’s website: https://globalpactenvironment.org/en/.
  17. « À la recherche de valeurs communes », in Humanités et souveraineté, Essai sur la fonction du droit international, chaptre 14, M. Chemillier-Gendreau, La Découverte, 1995, p. 330.
  18. M. Delmas-Marty, “From solitary sovereignty to solidarity based sovereignty”, s. supra.
  19. Cons. const., decision n° 2019-823 QPC January, 31 2020, Union des industries de la protection des plantes.
  20. B. Pascal, Thoughts, 1670: “Justice without force is powerless; force without justice is tyrannical (…). Thus, not being able to do strong what is just, what is strong was made to be just.”
  21. “Climate change and labour: impacts of heat in the work place climate change, workplace environmental conditions, occupational health risks, and productivity –an emerging global challenge to decent work, sustainable development and social equity”, UNDP, 2016.
  22. See S. Breyer, The Court and the World: American Law and the New Global Realities, First Vintage Books editions, 2015.
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Yann Aguila, Marie-Cécile de Bellis, A Martian at the United Nations or Naive Thoughts on Global Environmental Governance, Aug 2021.

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