2022 Declaration: Enhancing the Implementation of International Environmental Law
The 2022 Declaration resulting from the UNEP@50 international conference could be a strong document. It could further recognize the significant advancements made in the field of international environmental law “into an elaborate legal system consisting of customary rules, well established general principles, substantive and procedural obligations.” States may also be willing to underline the important role played by environmental committees and national and international courts.
1. In its Resolution 73/333 entitled “Follow-up to the report of the ad hoc open-ended working group established pursuant the General Assembly resolution 72/277 [Towards a Global Pact for the Environment]”, the General Assembly of the United Nations recognizes “existing obligations and commitments under international environmental law” (recital 4). It endorses all the Recommendations of the ad hoc open-ended working group, as set out in the annex to Resolution 73/333 (para. 1). One of the objectives guiding the Recommendations is to “uphold the respective obligations and commitments under international environmental law…” (Recommendations, para. 2). Furthermore, one of the substantive Recommendations is to “recognize the role of discussions on principles of international environmental law in enhancing the implementation of international environmental law” (Recommendations, para. 8). The draft Political Declaration of 11 October 2021 uses the same wording as recital 4 of the Resolution 73/333 and recognizes “the importance of their effective implementation [i.e. of existing obligations and commitments] in ensuring an environmentally sustainable future for our planet and addressing urgent social, economic and environmental challenges, …”, as well as “the essential role of the rule of law and effective governance to ensure compliance with environmental law, …” (draft Political Declaration, recitals 7 and 8). It also calls upon “Member States and Members of Specialized Agencies to recognize and incorporate principles of international environmental law into their national legal systems and highlight the support that can be provided through the Montevideo Programme V, and … commit to cooperate to build and support the capacity of courts and tribunals at all levels to give full effect to principles of international environmental law for fostering environmental rule of law” (draft Political Declaration, para. 10).
The International Court of Justice (ICJ) had the occasion in certain cases to underline some of these existing obligations and commitments. To mention but one well-known example: in its judgment in the cases “Certain Activities carried out by Nicaragua in the Border Area” and “Construction of a Road in Costa Rica along the San Juan River” (16 December 2015), the ICJ held that in order “to fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment”. “If the environmental impact assessment confirms that there is a risk of significant transboundary harm, the State planning to undertake the activity is required, in conformity with its due diligence obligation, to notify and consult in good faith with the potentially affected State, where that is necessary to determine the appropriate measures to prevent or mitigate that risk” (para. 104, para. 153, para. 168). In this context, the ICJ had also the opportunity to examine provisions of international environmental agreements, in particular articles 3 and 5 of the Ramsar Wetlands Convention and article 14 of the Convention on Biological Diversity (para. 109 and 110, para. 163 and 164).
Nearly fifty years have passed since the 1972 Stockholm Conference and the Declaration on the Human Environment. Fifty years of important legal developments. International environmental law has evolved into a complex and elaborate, specific branch of international law, and its core obligations are part of the main rules of international law. But it was not until the ICJ issued its Advisory Opinion concerning the “Legality of the Threat or Use of Nuclear Weapons” (8th of July 1996) and its judgment in the case concerning “the Gabcikovo-Nagymaros Project” (25th of September 1997) that the remaining shadow of doubt about the existence of a binding corpus of international environmental obligations was finally removed.
It is worth mentioning that in the said Advisory Opinion of 1996, the ICJ confirmed that “the existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment” (para. 29, emphasis added). Whereas in its judgment of 2015 in the Nicaragua-Costa Rica cases, the ICJ examined whether “violations of international environmental law”, violations of “procedural and substantive obligations”, had indeed taken place (emphasis added). Thus, after nineteen years from its Advisory Opinion of 8 July 1996, the ICJ felt on safe ground to acknowledge that a legal system of rules, principles, conventions, procedures and standards was meanwhile internationally accepted and recognized.
This evolution should not be underestimated and should not be regarded as self-evident. In this context, it may be additionally useful to recall that the Human Rights Council, in its Resolution 48/13, adopted on 8 October 2021, which recognizes the human right to a clean, healthy and sustainable environment, “affirms that the promotion of the human right to a clean, healthy and sustainable environment requires the full implementation of the multilateral environmental agreements under the principles of international environmental law” (para. 3).
First Proposal: The international meeting “UNEP@50”, in its outcome document, the 2022 Declaration, may be willing to underline “the remarkable evolution of international environmental law into an elaborate legal system consisting of customary rules, well established general principles, substantive and procedural obligations, numerous multilateral environmental agreements and several well-structured implementation and compliance mechanisms, declarations and guidelines, an extensive case law, as well as the in-depth work of highly qualified publicists”.
2. Different actors and bodies have played a decisive role in this process: courts and tribunals, the Conference of the Parties to international environmental conventions, implementation and compliance committees, government officials and diplomats, international organizations, environmental experts, non-governmental organizations, epistemic communities and academia, international and environmental lawyers, environmentally friendly businesses that contribute to the implementation of international environmental agreements, to name but some of them. With regard to the implementation of international environmental law and the question of how it could be further enhanced, it seems that particular attention should be paid to strengthening the respective work of implementation and compliance committees.
By way of example, the findings and recommendations of the Compliance Committee of the Aarhus Convention are illustrative of the significance that should be attached to these bodies. One of the well-known and most interesting Committee’s cases relates to Communication ACCC/C/2008/32 and the compliance by the European Union (EU) with specific provisions of the Aarhus Convention. In its findings and recommendations of 17 March 2017, the Committee “finds that the Party concerned fails to comply with article 9, paragraphs 3 and 4, of the Convention with regard to access to justice by members of the public because neither the Aarhus Regulation, nor the jurisprudence of the CJEU [Court of Justice of the European Union] implements or complies with the obligations arising under those paragraphs” (para. 122). The Meeting of the Parties endorsed the findings of the Committee and welcomed “the committed action by the Party concerned to fully address the recommendations in paragraph 123 of the findings of Communication ACCC/C/2008/32 (part II) and to bring its legislation and practice into compliance with the Convention in this regard” (ECE/MP.PP/2021/CRP.6/Rev.1, Decision VII/8f, para. 3 and para. 6). Regulation (EU) 2021/1767 amended Regulation (EC) 1367/2006 on the application of the provisions of the Aarhus Convention to Community [Union] institutions and bodies. When adopting Regulation 2021/1767, the European Parliament and the Council of the EU took into account “the provisions of Article 9(3) and (4) of the Aarhus Convention and the findings and advice of the Aarhus Convention Compliance Committee in case ACCC/C/2008/32, [thus] Union law should be brought into compliance with the provisions of the Aarhus Convention on access to justice in environmental matters in a way that is compatible with the fundamental principles of Union law and its system of judicial review” (recital 5). Suffice to say, the Aarhus Convention Compliance Committee constitutes an arrangement, a body of a non-confrontational, non-judicial and consultative nature, in accordance with art. 15 of the Aarhus Convention. As demonstrated, the effects of its work are, however, quite impressive.
Second Proposal: Thus, the international meeting “UNEP@50”, in its outcome document, the 2022 Declaration, may be willing to underline “the important role that implementation and compliance committees play in the application of international environmental provisions. Therefore, their work should be further strengthened and supported. The Conference of the Parties of international environmental agreements that do not have such committees could also examine the possibility of establishing such bodies, if necessary, through appropriate amending acts. All needed efforts should be made to ensure that national courts become familiar with the work of these committees as regards interpretation and implementation of certain environmental obligations, in the light of existing rules and general principles of international environmental law”.