A Global Pact for the Environment: Conceptual foundations

Correspondence Email: jev32@cam.ac.uk This article introduces the conceptual foundations of the initiative towards the adoption of a Global Pact for the Environment. It first situates the search for a global framework instrument on environmental protection in a long‐term perspective and then discusses the main reasons why it is needed. Against this background, the article presents the current expression of this much broader trend, in the form of the initiative for a Global Pact for the Environment and the momentum it has generated in policy circles, first and foremost at the level of the United Nations General Assembly.

current development. Quite to the contrary, these developments are the reflection of deeper trends that have been operating in the background for decades. For this reason, our second observation is that a broad question such as whether the adoption of a GPE is desirable, with certain contents that will be discussed later, is best answered not by zooming in to argue about the detailswhich are, indeed, a matter for debatebut by zooming out to understand the fundamentals. This is why this article first situates the search for a global framework instrument on environmental protection in a long-term perspective and then discusses the main reasons why it is needed. Against this background, we then present the current expression of this much broader trend, in the form of the initiative for a GPE and the momentum it has generated in policy circles, first and foremost at the level of the UN General Assembly. But the need for such an instrument heavily depends on its nature, content and articulation with existing international instruments, which must be designed to specifically allow for significant flexibility in its implementation by States with different legal systems and political realities. For that reason, we propose an analytical framework to guide the delicate exercise of striking a balance between a range of different considerations.
The latter point has been misinterpreted in some circles, sometimes disingenuously so. The heart of the initiative for a GPE is not the specific formulation of certain principles in the draft project or even the architecture retained for it. Much more importantly, it is the widely shared impression that this is an idea whose time has come.

OF GLOBAL ENVIRONMENTAL GOVERNANCE
The ambition to develop a global pact for the environment is not new. In situating the current initiative, it is important to clarify what forms this ambition has taken in the past and how they fitted within the broader context of global environmental governance.
The first significant attempt to develop a global framework for environmental protection is certainly the Conference on the Human Environment held in Stockholm in June 1972. 6 This is widely considered as the constitutional moment of international environmental law, 7 as well as a catalyst for domestic environmental law. 8 The 'framework' provided fell short of a global treaty, but it defined the province of global environmental governance and set the institutional and strategic foundations for further action on environmental protection. 9 The international context was, however, not entirely auspicious for such an important development. Indeed, the deep ideological and policy divides of the Cold War 10 and, no less important, of the quest for 'permanent' economic sovereignty by newly independent States and other developing countries 11 undermined, to some extent, the representative character of the statements made at Stockholm. 12 Yet, the Stockholm Conference provided a solid basis on which to build a more structured framework.
During the 1980s, the efforts leading to the adoption of the World Charter for Nature 13

| TH E N EED FOR A GLOBAL PACT
The adoption of a GPE would constitute an important milestone in the evolution of international environmental law and, more generally, of global environmental governance. There are several reasons for it, some which are readily apparent and some others which require a more detailed understanding of international, comparative and domestic law. The first reason is relatively straightforward. The Rio Declaration is not binding as such, a feature that has prevented some principles from deploying their full effects. 28 The second reason is the absence of a broader common core of legally binding principles on which significant gaps in the regulation could rely upon, which leaves certain important questions too open or unsettled. Most observers would accept that plastic pollution is currently a matter that has largely remained unaddressed or has 'fallen between the cracks' of international instruments. In fact, the   the critical problem of air pollution, which is only regulated regionally at the present. 30 These are certainly not minor lacunae that can be addressed by mere 'tweaks' of existing instruments. In time, they will call for an organized binding response. In the meantime, their broad regulation could rely on a general statement of binding principles.
Third, there are even broader questions that influence the operation of the entire international environmental law system and that have been largely overlooked. A major example is consumption-driven environmental degradation, that is, environmental degradation in one country led by consumption in others. 31 Unfortunately, neither the Rio Declaration 32 nor the numerous multilateral environmental agreements (MEAs) have much to offer in this regard. The large majority of them (with the notable exception of CITES 33 ) focus on production and, thus, they offer almost no means to address the situation of a country in which environmental degradation is driven by foreign consumption.
Fourth, yet another form of gap concerns the possible conflicts between instruments with limited sectoral or spatial scope. The ocean may appear, from the perspective of the climate change regime or that of the ocean dumping regime as a carbon sink or a carbon sequestration dumpsite, 34 but that is in open conflict with the requirements of the provisions on the protection and preservation of the marine environment under the UNCLOS 35 or in the ongoing negotiations relating to the protection of biodiversity beyond national jurisdiction. 36 Legally, there are no overarching principles, aside from the limited set of customary international environmental law norms, that could provide solutions to such far-reaching conflicts. Thus, when one considers the questions of 'gaps' seriously, beyond the superficial references to commonly acknowledged lacunae, there is a much deeper need for a binding overarching framework.
A fifth problem, related to the previous one, comes from the fact that some of the Rio principles have been understood and treated differently across treaty contexts and their related dispute settlement mechanisms, with important practical implications. Three examples concern the different positions taken with respect to the nature and scope of the precautionary principle/approach, 37 those regarding the spatial scope of the requirement to conduct an environmental impact assessment 38 and those relating to public participation. 39 This divergence is possible because of a lack of an overarching statement of binding principles.
A sixth and important reason is that the guidance provided by the Rio Declaration to national legislators and courts is neither clear nor strong enough. 40 The example of the precautionary principle/approach provides, once again, an apposite illustration. One can attempt, in this regard, to identify uses of this principle and to organize them across a spectrum that goes from more conservative to more ambitious ones. 41 Such references have indeed been used: (i) to caution against the principle's 'potentially paralysing effects'; 42 (ii) to assess whether certain measures expressly adopted on the basis of the precautionary principle are The divergence is serious with respect to precaution, with different international courts and tribunals considering that: (i) it is not a recognized norm of customary international law (EC -Biotech (n 28) para 7.88) or, conversely, (ii) that it is indeed recognized ( Tatar v Ro  This distribution of votes, and the identity of the current governmentsnot the countriesvoting against the resolution, speaks for itself. It is, however, important to recall it in an article that hopefully will serve as a record for future generations to know where the resistance came from.
The arguments, although not entirely unfounded, ring hollow.
The GPE has been in the making for decades and asking for more The working group is tasked with 'making recommendations [to the General Assembly], which may include the convening of an intergovernmental conference to adopt an international instrument'. 67 Ambiguity is pervasive in this and other formulations used in the Enabling Resolution. What seems far more precise is the demanding time frame for the ad hoc group to do so, namely during the first half of 2019.
The President of the UN General Assembly appointed two co-chairs for the working group, one from Portugal (Ambassador Francisco Mudallali). The group held its first meeting on 5-7 September 2018 to address organizational matters. Three other meetings focusing on substance will be held in the first half of 2019 (the last session is scheduled to start on 20 May 2019), all in Nairobi, as had been the wish of the Kenyan delegation. This is key to ensure the buy-in from developing countries as well as from UNEP.
It is important to note, as will become apparent in the next section, that the initiative for a GPE never expected for the draft project to be adopted as such, or even in a mildly revised form. The text proposed is above all representative of an approach, which may change significantly, even fundamentally during the negotiations. The key expectation is that negotiations will indeed start and that the 'instrument' envisioned by the negotiation mandate will constitute a step further than the Rio Declaration.

| A binding instrument
The initiative for a GPE specifically aims for the adoption of a binding The term 'Pact' unequivocally refers to a binding treaty. It was selected, among several other terms falling under the genus treaty (e.g. covenant, convention, agreement, treaty, protocol), both for its similarity in at least three UN languages (Pact, Pacte, Pacto) and in order to convey the generality of the instrument envisioned, which is to be a 'Pact' adopted by States but emphasizing the role of a much wider body of stakeholders. In addition, the term Pact connotes a general value stance taken by the international community, much as in the context of the recently drafted Global Compacts on Migration and Refugees. 69 Since the early stages of the initiative, and throughout the discussions within the network of experts, it was clearly understood that the draft project was only intended as a basis for discussion that would be subject to detailed scrutiny by all States and very likely undergo substantial, even fundamental modifications. At the same time, however, the draft project was intended to substantiate the claim that over a hundred environmental law experts, including academics but also practitioners, from all four corners of the world considered the idea to be realistic and ripe for action. Thus, the draft project is, in many ways, a 'proof of concept' developed to lend credibility to the larger enterprise of launching negotiations to conclude a GPE. This clarification is important, because much of the criticism that the initiative has faced, including from overtly hostile quarters, either rely on the aforementioned euphemisms for inaction or focus on details of formulation in the draft project which will very likely change in the course of the negotiations, without undermining the overall idea.

| Fundamental choices relating to content and design
The contents of the draft project reflect a number of fundamental choices arising from the consultation process. These choices concern: (i) the conciseness of the instrument; (ii) a formulation emphasizing its enduring character; (iii) its adaptability to different country contexts; (iv) a balance between rights and duties; (v) a balance between well-established principles and novel ones; and (vi) a balance between the normative and the institutional dimension.
The draft project is specifically drafted as a very concise document, a few pages long, avoiding as much as possible unnecessary complications. This is consistent not only with the end result sought by the initiative for a GPE, that is, a binding statement of fundamental principles, but also with the nature of the draft project as such, which is to provide an accessible basis for discussion that can be scrutinized in great detail by States and other stakeholders, without requiring inordinate amounts of time and effort.
The style used in the formulation of the project seeks to avoid any excessive embeddedness in our present time or, more specifically, it attempts to formulate principles of enduring relevance for the present but also the future. This is a common feature of instruments that are expected to deploy their effects through long periods of time, such as constitutions, human rights treaties, constitutive instruments of international organizations, and so on. However, unlike many of these other treaties, the endurance of the draft project does not rest on a heavy institutional architecture but on the general formulation of its principles. This is because the scientific understanding of environmental problems, as well as of the suitability of different answers, is constantly changing.
The generality of the formulation is also important for the adaptability of the draft project to the very different circumstances prevailing across countries. It would be unfair to say that the draft project assumes that 'one size fits all'. This important consideration was specifically taken into account by the expert 68 ibid (emphases added). 69  network and the drafting committee, which did their best to ensure that the text is sufficiently general to be capable of providing normative guidance while at the same time allowing States to tailor the implementation of the principles in the GPE to their own circumstances.
Reflecting the wide recognition, at the domestic level, 70 and the increasingly pressing calls, at the international level, 71 for a right to an environment of a certain quality (often characterized with the adjective 'healthy', 'clean', 'safe' or 'generally satisfactory'), the draft project formulates, in its Article 1, a 'right to an ecologically sound environment'. 72 This statement is mirrored, in Article 2, by the assertion of a correlative 'duty to take care of the environment'.
Importantly, this duty is incumbent on '[e]very State or international institution, every person, natural or legal, public or private'. 73 This is a very progressive stance, which has been criticized for excessively expanding the spectrum of duty-bearers and, thereby, possibly undermining the role of the State as the primary duty-bearer in connection with both human rights and environmental norms. This is a relevant point, which States will need to examine in great detail in their discussions concerning a future GPE. The current formulation of Article 2 is designed to put on the table the full spectrum of possible duty-bearers or, in other words, to highlight that the duty to take care of the environment is not to be conceived of only as a duty of States. The architecture of the draft project flows from this combination of a right and a duty. In Articles 3-20, the draft project states a series of rights (e.g. Articles 9-11, which unravel Principle 10 of the Rio Declaration, but explicitly stating that these are rights of 'every person') and duties (on a range of duty-bearers, including 'States' or the 'Parties', but also 'their subnational entities', 74 'present generations' 75 or, by avoiding the identification of a specific duty-bearer, any entity which is in a situation covered by the duty 76 ).
The principles featured in the draft project include well-known norms, 77 in some cases using formulations that clarify previous ambiguities or expand the principles' scope. 78 But the project also innovates by including principles, which so far had not featured in a general statement of principles 79 or even in previous treaties. 80 The expert group sought to strike a balance between the consolidation and the innovation function of the project. Consolidation is important to strengthen existing norms as well as to assuage potential concerns of States reluctant to undertaking new commitments. Yet, some measure of innovation is also important because the project must be an additional step in the evolution of global environmental governance and, as much as possible, an inspiring and energizing one.
Finally, the draft project strikes a balance between its normative dimension (the formulation of principles) and its institutional one (the creation of a new body). Sensitive to the concerns expressed by several members of the expert group, which more broadly reflect States' concerns, the draft project provides for a very light institutional component. Indeed, Article 21 contemplates the creation of a Committee of independent experts, whose structure and mandate would be midway between that of the committees set up by human rights instruments and that of the compliance committees established by MEAs.
The non-adversarial approach followed by Article 21 of the draft project is derived from the latter source, specifically from Article 15 of the Paris Agreement, which reflects similar provisions in earlier MEAs.  a healthy environment is an idea whose time is here. The Council should consider supporting the recognition of this right in a global instrument'); 'Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment' UN Doc A/73/188 (19 July 2018) para 37 ('The time has come for the United Nations to formally recognize the human right to a safe, clean, healthy and sustainable environment, or, more simply, the human right to a healthy environment'); 'Statement by David R. Boyd, Special Rapporteur on Human Rights and the Environment at the 73rd Session of the General Assembly' (25 October 2018) ('after six years as mandate holder, Professor Knox came to the conclusion that there is a glaring gap in the global human rights system. He and I are in 100% agreement that it is time for the UN to recognize the fundamental human right to live in a safe, clean, healthy and sustainable environment'). 72 See 'Draft Global Pact for the Environment' (24 June 2017) art 1; 'White Paper: Toward a Global Pact for the Environment' (September 2017), both available at <www.pactenvironme nt.org>. 73 See 'Introductory Report on the Draft Global Pact for the Environment' (September 2018) balance in all six dimensions, and perhaps in some others, will need to be struck by the working group and, as the case may be, by the intergovernmental conference. Commentators, whether from academic or policy circles, would also need to shed light on these dimensions and, more specifically, on the advantages and disadvantages of different combinations. The conceptual chart offered in Figure 1 will hopefully be of use to provide some structure to the debates.

| Interaction with existing instruments
The Enabling Resolution, in its paragraph 9, '[r]ecognises that the process indicated above [i.e. the ad hoc open-ended working group and its possible continuation by an intergovernmental conference] should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies'.
It is important, in clarifying the scope of this paragraph, to dispel one common misunderstanding. A GPE would neither exclude the application of other instruments to the same situation nor be prevented from applying when such other instruments apply. It is possible for existing instruments to be either more specific or more general than the proposed GPE, or even both more specific and more general at the same time (the analysis may have to be conducted provision by provision or clause by clause). It is also possible that the proposed GPE may cover areas left open by existing instruments (e.g. providing a global fallback regime for matters as diverse as plastic pollution or, more generally, land-based pollution or atmospheric pollution, before a more targeted instrument is adopted) or that it may contribute to their interpretation in such a way that unlocks the potential of certain provisions (e.g. to clarify the implications of some existing treaties for consumption-driven pollution). These and other forms of interaction are possible and acceptable.
Out of all the possible forms of interaction between existing instruments and the proposed one, only those whereby the latter would 'undermine' the former are to be avoided. The term 'undermine' must be understood, in this context, as capable of defeating the environmental protection purpose of existing treaties. As long as the proposed GPE does not defeat the environmental protection purposes pursued by these many instruments, the approach would be deemed consistent with the parameters set in paragraph 9. It is difficult to conceive how the proposed GPE could defeat those purposes. Those who argue against the proposed GPE or a specific provision included in it would have the burden to identify how exactly and to what extent there is a genuine risk that the Pact may undermine an existing instrument. Such arguments should be established in a manner that is no less 'technical and evidence-based' than the report envisaged in the Enabling Resolution, which was published in late November 2018.
It should be noted that, from a technical standpoint, the International Court of Justice has expressly recognized that different norms may all apply together to cover different aspects of a complex situation. Thus, the Court has referred to the need to take into account the prevention of environmental harm in assessing the necessity and proportionality of an armed action taken in self-defence 81 or, more specifically, to the possibility that human rights norms and norms of international humanitarian law (by analogy, also environmental norms) may apply together. 82 For present purposes, the relevance of this point is to recall that different norms are not necessarily mutually exclusive. The principles formulated in a general statement such as the proposed GPE could: (i) apply together with other more specific norms and treaties; (ii) without either excluding their application or being excluded by it; and (iii) making a useful contribution to the regime governing a range of different situations, either by addressing aspects left open by existing treaties or by contributing to the interpretation of the latter.

| PROSPE CTS
It is for States to decide whether the adoption of a GPE, of a nature, scope and content to be discussed, is indeed an idea whose time has come. It is of course very likely that, 50 years from now, arguments against the GPE will look like arguments against the 1966 International Human Rights Covenants, or even the 1948 Universal Declaration on Human Rights or the 1948 Genocide Convention, that is, as either politically motivated or, at best, as retrograde.
The proposed GPE is not an unrealistic idea. It is, in our view, a logical next step in the evolution of global environmental governance. The adoption of an overarching statement of principles is consistent with the practice in many other areas of international law.
One could refer in this regard not only to human rights but also to the law of the sea, 83 trade law, 84 international criminal law 85 or international humanitarian law. 86 The situation is similar at the domestic level. Countries from all corners of the world have adopted general environmental statutes 87 which, despite their diverging scope, have a transversal application to environmental protection and seek to provide some unity and coherence of principle to sectoral statutes. In many cases, these general statutes came after sectoral ones, 88 precisely to provide some measure of consolidation and coherence. We do not see why similar considerations would not be relevant for international environmental law.
There is, however, much room for arguing about the nature, scope and content of an overarching instrument and, in offering a framework ( Figure 1) to structure the diversity of arguments as well as in fleshing out how a balance between different considerations was struck in the draft project, this article hopes to contribute to such discussions and provide a written record for future generations of how this generation sought to address the problemslargely of its own makingthat they will face much more acutely.