Towards a global pact for the environment

Author:Irina Moroianu Zlatescu
Position:Prof. univ. dr.
Pages:123-130
SUMMARY

On the occasion of the UN General Assembly in New York on September 19th 2017, the French President Emmanuel Macron presented the draft of the Global Pact for Environment in front of Heads of States and Governments, representatives of the civil society and of the private sector, the 193 member states of the organization, in the presence of the UN Secretary General Antonio Gutteres and of the President of the French Constitutional Council, Laurent Fabius1. This pact, if adopted, will complement the legal building of the fundamental human rights norms created by Rene Cassin2, reinforced by Karel Vasak3 by creating the three generations of rights4. Each of these generations could now have its own Covenant. For the first two generations of rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were adopted in 1966. For the third generation, this new Global Pact will come to cover the most part of rights. It will be the one that will lead mankind to "act for the planet, to act by law5”.

 
CONTENT
Towards a global pact for the environment 123
TOWARDS A GLOBAL PACT FOR THE ENVIRONMENT
Prof. univ. dr. Irina Moroianu ZLTESCU*
ABSTRACT
On the occasion of the UN General Assembly in New York on September 19th 2017, the French
President Emmanuel Macron presented the draft of the Global Pact for Environment in front of
Heads of States and Governments, representatives of the civil society and of the private sector, the
193 member states of the organization, in the presence of the UN Secretary General Antonio
Gutteres and of the President of the French Constitutional Council, Laurent Fabius1.
This pact, if adopted, will complement the legal building of the fundamental human rights
norms created by Rene Cassin2, reinforced by Karel Vasak3 by creating the three generations of
rights4. Each of these generations could now have its own Covenant. For the first two generations of
rights, the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights were adopted in 1966. For the third generation, this new
Global Pact will come to cover the most part of rights. It will be the one that will lead mankind to
"act for the planet, to act by law5”.
The period following the creation of the United Nations Organization, the
elaboration of the United Nations Charter and the adoption of the Universal
Declaration of Human Rights is considered by the doctrine to be the contemporary
era of human rights, characterized by the emergence of numerous regulations in
the field of fundamental rights6.
* Prof. of Law, Titular Member of the International Academy of Comparative Law , Member of
the FRA Management Board, President of the United Nations Association of Romania.
1 Former French Prime Minister and President of COP 21.
2 First Nobel Peace Prize laureate, principal author and editor of the Universal Declaration of
Human Rights of 1948.
3 University Professor,. adviser to the Council of Europe (1969-1976). He was the publisher of the
volume Les dimensions internationales des droits de l'homme (1978) and codecer of the volume Les
dimensions universelles des droits de l'homme, 1990, both under the aegis of UNESCO.
4 The classification in three generations was first proposed in 1977-1979, when Karel Vasak was then
the First Secretary General of the International Human Rights Institute in Strasbourg. He was also the
director of UNESCO's Human Rights and Peace Division and then legal adviser to UNESCO and the
International Tourism Organization. Generation I, civil and political rights, second generation, economic,
social and cultural rights, third generation, the right to peace, development and the environment.
5 The motto of the French Jurists Club Conference from 24 June 2017 where the draft of this
document was launched and where I had the honor to be invited.
6 The United Nations Commission on Human Rights, which ended its activity based on Resolution
60/251 of 15 March 2006, when it was replaced with the United Nations Human Rights Council, provided
the international community with a universal framework of human rights, including the Universal
Law Review vol. III, Special issue 2017, pp. 123-130
124 IRINA MOROIANU ZLĂTESCU
The 70 years since the proclamation of the Universal Declaration of Human
Rights by the United Nations General Assembly, more precisely on the 10th of
December 1948, have hardly diminished the power of the message conveyed by
this document of exceptional importance, meant to consecrate a common ideal for
all nations, the foundation on which the construct of human rights has been
edified. The main author of the draft, René Cassin, laureate of the Nobel Peace
Price after the adoption of the Declaration, compared the latter with the porch of a
temple sustained by four columns. The first column is the one of the personal
rights and liberties. The second regards the rights of the individual in relation to
the groups he belongs to and to the elements of the outer world. The third pillar is
the one of the spiritual faculties and the forth, the one of the economic, social and
cultural rights. Above these columns should be set a gable that binds the individual
and the society7. The basic principles that guide the United Nations’ entire outlook
about human rights are the universality, the indivisibility, the interdependence
and the inalienability of human rights.
Another evidence in favor of this principle is the very passing of the two
Covenants under the same resolution and the opening for signature on the same
day. Also, Resolution 42 (V) of December 4th 1950 by the General Assembly had
explicitly asserted that enjoyment of the civil and political freedoms as well as the
economic, social and cultural rights are related and condition each other and that
the man deprived of economic, social and cultural rights does not represent the
human person that the Universal Declaration of Human Rights considers to be the
ideal of the free man. The very Preamble to the International Covenant on Civil
and Political Rights asserts that „the ideal of free human beings enjoying civil and
political freedom and freedom from fear can only be achieved if conditions are
created whereby everyone may enjoy his civil and political rights, as well as his
economic, social and cultural rights”. The Conference of Teheran of 1968, devoted
to the 20th anniversary of the Universal Declaration of Human Rights, reiterated the
great importance of this principle. The Declaration was passed by a vast majority,
namely 48 States8 voted yes, 8 States abstained9 and there was no vote against. Two
States were absent10. The Declaration appreciated from the very moment it was
Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights,, respectively their Protocols, as well as other
fundamental human rights treaties.
7 Irina Moroianu Zltescu, Drepturile omului – un sistem in evoluie, Ed. IRDO, Bucharest, 2008, p. 79-97.
8 Afghanistan, Argentina, Australia, Belgium, Burma, Bolivia, Brazil, Canada, Chile, China,
Columbia, Costa Rica, Cuba, Denmark, the Dominican Republic, Egypt, El Salvador, Ecuador, Ethiopia,
France, Greece, Guatemala, Haiti, India, Iraq, Iran, Icela nd, Lebanon, Liberia, Luxembourg, Mexico, The
Netherlands, New Zeeland, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, The
United Kingdom, The United States of America and Venezuela.
9 The Soviet Socialist Republic of Belarus, Czechoslovakia, Poland, Saudi Arabia, The Soviet Socialist
Republic of Ukraine, The Union of South Africa, The Union of Soviet Socialist Republics, Yugoslavia.
10 Honduras and Yemen.
Towards a global pact for the environment 125
passed as a first step to the institutionalization of human rights and the fundamental
freedoms at international level. It was a document of an exceptional value; it was
the first time when an organized community of States elaborated such a document
endorsed by the authority of the assembly of Member States of the United Nations
and that of tens and hundreds million people all over the world. But, according to
a memorandum of the UN legal service, “a Declaration is a formal and solemn
instrument, only justified in rare occasions, when very important principles of
durable value are being enunciated”.
Watching closely a process of elaboration, on the 16th of December 1966, the
General Assembly passed under Resolution 2200 A (XXI) not one covenant, as had
been anticipated as far back as 1947/1948, but two covenants and an optional
protocol, namely the International Covenant on Civil and Political Rights, the
Optional Protocol to the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights.
As a result of this, the International Charter of Human Rights – of which only
the Declaration had been elaborated by 1966 – was completed by these documents.
As was shown, it was to be added later other documents as well.
A number of similar provisions are included in the two Covenants. Thus, each
Preamble enumerates the general principles of human rights taken from the
Declaration, that is, those referring to the inherent dignity of the human person and
the ideal of the free human being; the States´ obligation imposed under the Charter
of the United Nations to promote the observance of human rights is reasserted. „in
almost identical words, the Covenants state the principle according to which
„recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice, peace in the
world”. Both Covenants reassert the principle according to which the right to self-
determination is universal; States are required to assist the achievement of the right
of peoples to make their own decisions applicable within their own territories as
well as respect this right in third states. By virtue of this right, peoples shall freely
decide upon their political status and freely ensure their economic, social and cultural
development, for which they shall freely make use of their natural assets and
resources. The provisions of articles 3 in the two covenants are also similar and refer
to the commitment of States to ensure the equal right of men and women to enjoy
all the economic, social, cultural, as well as the civil and political rights set forth in
the respective covenant. Thus, not only is the principle of equality between men
and women stated, but also the States are required to make it become a reality.
However, the rights and freedoms laid down in the two covenants are not absolute
and can, if necessary, be subject to limitations. As a rule, the International Covenant
on Civil and Political Rights provides that such limitations can only be applicable
when provided under the law and if they are necessary to ensure national security,
public order, public health or morality, or the rights and freedoms of others.
126 IRINA MOROIANU ZLĂTESCU
It should be mentioned, that the Resolution 23(XXXVI) of February 29th 1980
insisted on the fact that in the exercise of his/her tights and freedoms, every
person shall only be subject to limitations established under the Charter of the
United Nations, the Declaration, the two Covenants and the other instruments that
had been elaborated. Any illegal limitations or persecutions are incompatible with
the commitments assumed by the States.
The two Covenants as well as the Optional Protocol were passed and opened for
signature, ratification and accession under the same resolution by the General
Assembly (2200A(XXI)) of December 6
th 1966. The International Covenant on
Economic, Social and Cultural Rights came into force on January 3rd 1976. The other
Covenant came into force on March 23rd 1976.
In 1985, the Economic and Social Council created the Committee of the
economic, social and cultural rights by restructuring the workgroup established in
1978. The Committee was tasked to examine the reports submitted by the States
and formulate general recommendations for the Council. Among others, the
Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, adopted in 2008, authorizes the Committee established under the Covenant
to receive and analyze communications.
The provisions included in the fourth part of the Covenant, articles 28-45, are
of a particular importance as the refer to the ways the Human Rights Committee
shall be established, its structure, election of the members, its competences and
work procedures.
The Optional Protocol to the International Covenant on Civil and Political Rights
includes additional provisions related to the Human Rights Committee established
under the Covenant. They regulate the mechanism by which the complaints
submitted by individuals who feel one or several of their rights have been violated,
shall be examined.
The Protocol authorizes the Human Rights Committee, created under the
Covenant, to receive and examine the communications submitted by individuals who
claim to be victims of the violation of one or several rights laid down in the Covenant.
By virtue of articles 1 and 6 of the Protocol, any State Party to the Covenant that
becomes Party to the Protocol recognizes the competences of the Committee to
receive and consider such communications. As a result, any individuals who claims
to be a victim of such violation and has exhausted all domestic remedies may submit
a written communication to the Committee.
The Second Optional Protocol to the Covenant on Civil and Political Rights,
which deals with the abolishment of the death penalty, was passed by the UN
General Assembly on December 15th 1989, following long-lasting debates.
It is asserted in the Preamble od the Protocol that „abolition of the death penalty
contributes to enhancement of human dignity and progressive development of
human rights”.
Towards a global pact for the environment 127
All these instruments joined together in the International Charter of Human
Rights are of the utmost importance. Their binding nature has been proclaimed on
numberless occasions; their provisions have been and still are the basis of a very
large number of decisions made by the UN bodies and by the regional and national
organizations; many of the member states of the international community have
included them in their national legislations. The Universal Declaration of Human
Rights and the two Covenants were the model and source of inspiration to a multitude
of other instruments which, one way or another, further develop the various
provisions they include and add new ones, in the spirit they have consecrated.
First there have been established instruments11 and mechanisms12 only for the
first two generations of human rights. For the third generation of human rights13,
the works went slower. The idea of a Pact for the third generation of rights has
only spread shortly before the 70th anniversary of the Universal Declaration of
Human Rights. Even if this third generation includes the right to peace, the right to
sustainable development and the right to environment, the new Pact only sets legal
norms for the last two categories of rights.
The objectives of the Global Pact for the Environment, the content of which is
achieved through consensus14, enshrine the fundamental commitments of the
states to the environment as well as the rights and obligations of citizens and
businesses towards the planet. The Global Pact for Environment seeks to create a
legal text that, together with the Sustainable Development Objectives adopted at
the UN General Assembly in New York in September 201515, represents the pillars
of global environmental governance. The principles that it enshrines are already
the subject of a broad consensus, being laid down in various declarations such as
the Stockholm Declaration of 1972, the World Nature Charter of 1982 and the 1992
Rio Declaration, which recognize human rights in a healthy environment and the
obligation of states to protect it16. Since their adoption, they have progressively
contributed to the circulation and implementation of fundamental principles, with
over 500 international environmental treaties currently in place. But given that the
declarations have only moral strength, but lack legal force, this pact will take the
form of a treaty of legal value, to become an instrument that can be invoked before
the courts, creating a jurisprudential dynamic. It must be accompanied by a
11 In the form of Covenants.
12 Through the Protocols.
13 According to the classification of Karel Vasak.
14 As the initiators of the Covenant underlined, it restores in a binding treaty the recognition of
the right to a healthy environment for every person. This right derives the right of citizens or more of
civil society to require states to respect the environment.
15 In relation to the objectives for sustainable development, see Irina Moroianu Zlatecu, Noi
obiective pentru dezvoltarea durabil, Ed. IRDO, Revista Drepturile Omului, no. 2/2015, p. 7 et seq.
16 See Irina Moroianu Zltescu, Drepturile Omului – un sistem în evoluie, Ed. IRDO, Bucureşti,
2008, p. 207 et seq.
128 IRINA MOROIANU ZLĂTESCU
tracking and control mechanism. Thus, each state will have to send regularly to a
body set up under the Covenant a report on its application.
After the launch of the UN Pact, of course follows the real work of official
drafting of the definitive form of the document. In principle, it is desirable that this
activity brings together international lawyers representing the five continents. The
first stage in which the project was drafted began after December 12, 2015, when
the international agreement following the UN Conference on Climate Change in
September 2015 was adopted in Paris17. It was ratified by many states in 2015.
The Jurists' Club18 concluded that the 2015 and 2016 dynamics, the adoption of
the above-mentioned Paris Agreement, the adoption of sustainable development
objectives can be prolonged through a new legal step. It found that there is no
important international text yet that has legal value and which brings together the
fundamental principles of environmental law. This text, which would have the
vocation to become the cornerstone of international environmental law, would be
the Global Environment Pact.
Further on, until the 23rd of June 2017, a large number of French lawyers,
theorists and practitioners, made the avant-garde draft of the pact and debated it
with law experts from over 40 countries on June 24th, in the Sorbonne Grand
Amphitheater under the presidency of Laurent Fabius and in the presence of eminent
lawyers, magistrates of Constitutional Courts and Supreme Courts, teachers from
prestigious universities around the world, etc. The high-profile international event
enjoyed the presence of former UN Secretary-General Ban Ki-moon. The draft pact,
which had initiators as Laurent Fabius and Yann Aguila19, was also supported by
Marry Robinson, Paul Polman, Sidiqui Kaba, Luc Lavrysen, Swatanter Kumar,
Arnold Schwarzenegger20, Anne Hidalgo, Laurence Tubiana, Manuele Pulgar-Vidal,
Jean Jouzel, Antonio Benjamin, and others.
It was an impressive moment, both through the quality of the participants and
their impressive number. On this occasion, the pact was handed to the President of
France, who pointed out that "all these joint efforts deserve a universal single
framework" and promised to present the document in September 2017 at the UN
Summit in New York, which, in fact, as can be seen from the first lines of this
study, has been achieved. As set out in Paris on the 24th June 2017, the day after the
17 From November 30 to December 11, Paris hosted the 21st session of the Conference of the
Parties (COP 21) to the United Nations Framework Convention on Climate Change (UNFCCC) and
the 12th Session of the Meeting Parties to the Kyoto Protocol (CMP11).
18 It is a framework for debates and legal proposals. It brings together academics, magistrates,
lawyers, French jurists. It is a think tank that has formed around two major objectives: encouraging
legal debate and innovation, proposing to strengthen the role of law in the public debate and to
contribute to the understanding of legal issues by the general public.
19 Lawyer, President of the Environment Commission of the Jurists Club.
20 The ex-governor of California supported the project even one month after the exit of the United
States of America from the Paris Agreement. The United States returned to the position of supporting the
project during the UN New York Summit in September 2017.
Towards a global pact for the environment 129
summit organized by France on the occasion of the ministerial week at the 72nd
Session of the UN General Assembly, on the 20th of September 2017, when the
Columbia University in New York, together with the Colombia Center for
Sustainable Investment, the French Lawyers Club, the Sustainable Development
Network, the Carlos III University of Madrid, and others, organized a conference
on the World Environment Pact21.
This session will address the case of the Global Environment Facility from the
point of view of international governance, analyzing the state of the existing
governance tools and discussing the content that the pact should have.
Thus, it has been given the opportunity to review the legal and political
framework set out in the Pact in the light of existing agreements and environmental
law principles in the context of the current global policy. The conference dealt with
the purpose and impact of the new document. Among the debated issues was the
normative framework of the pact, the legal challenges and the opportunities offered
by it as well as the ways in which responsibilities will be imposed on both states and
corporations. Issues have also been discussed with regard to the implementation of
existing international case law on the environment. In the same framework, the
mechanisms proposed in the pact and the way in which they operate have been
explained.
At the same time, proposals were made regarding the activities of various
bodies that contribute to the achievement of the objectives of the 2030 Agenda and
to finding opportunities for collaboration between companies, governments, state
institutions and civil society.
In order that this pact becomes reality, it is necessary to fight against climate
and environmental insecurity, to cooperate in achieving world environmental law,
to create the conditions for responsible economic and social development and a
strong international commitment.
A Global Environment Pact will eliminate many of the gaps in international
environmental governance. Unlike the specific sectoral agreements of the Treaties
adopted over time, this pact would provide a text of general applicability that would
lead to the coordination of norms and institutions in international environmental
law. In addition, it would codify the principles stated in the agreements so far,
establishing legal rights and responsibilities that can be invoked in national and
international courts.
All this would transform the World Environment Pact from an ideal into a
reality of great international visibility.
Nevertheless, it is important to be noted that both the Covenant on social,
economical and cultural rights and the Covenant on civil and political rights only
21 The initiator was prof. Dr. Jeffrey David Sachs, director of the Columbia University Institute for
Sustainable Development, special advisor to the UN Secretary General for Sustainable Development
Objectives.
130 IRINA MOROIANU ZLĂTESCU
contain a state review procedure. This procedure obliges the states to submit
periodic reports to the different Committees on how the rights are being implemented
in their country. The Committees will examine each of the reports and will address
their point of view and recommendations to each member State. These
recommendations are called concluding observations. The main disadvantage of this
procedure is that the individual cannot directly submit his claim to an international
body. At the time the two Covenants have been ratified it was very unlikely to
reach a consensus regarding the establishment of an individual claim procedure.
The State parties were not ready to give up on certain aspects of their sovereignty
and to appear as equal parties with individuals in front of an international body.
Thus, it has been tried to introduce an individual claim procedure through
Optional Protocols, a measure considered by the doctrine to be one of the greatest
achievements in the recent development of the International Human Rights Law.
The Optional Protocols establish the jurisdiction of the Committees to examine
individual complaints/communications regarding alleged violations of the Covenants.
However, an individual complaint can only be submitted against a State party that
ratified the corresponding Protocol.22 Taking this development into account, one of
the most important questions raised in the context of a Global Pact for Environment is
the question of its enforcement. Article 21 of the Draft text only foresees a
monitoring body, a Committee consisting of independent experts entitled to receive
periodic reports of the State parties regarding their progress in implementing the
provisions of the Pact. Further, one year after the entry into force of the Pact, the
Parties will have to establish the modalities and procedures by which the Committee
shall exercise its functions. It remains open, if the third Human Rights Covenant
will also be followed by an Optional Protocol establishing either an individual
complaint mechanism or another enforcement mechanism.
BIBLIOGRAPHY
Irina Moroianu Zltescu, Drepturile omului – Un sistem in evoluie, Ed. IRDO,
Bucharest, 2008
Irina Moroianu Zltescu, Noi obiective pentru dezvoltarea durabil, Ed. IRDO,
Revista Drepturile Omului, no. 2/2015, p. 7 et seq.
Kälin Walter, Künzli Jörg, Universeller Menschenrechtsschutz – der Schutz des
Individuums auf globaler und regionaler Ebene, 3rd edition, Basel, 2013
22 Kälin Walter, Künzli Jörg, Universeller Menschenrechtsschutz – der Schutz des Individuums
auf globaler und regionaler Ebene, 3rd edition, Basel, 2013.