A Fifty Year Stocktaking and Achieving Transformative Change through the Rule of Environmental Law
Transformation cannot be achieved without collective action. It is essential for States to take the opportunity provided in 2022 to recognize and commit to robust and transformational implementation and compliance with legal commitments. The next political declaration should urge all for robust implementation of the rule of environmental law by all States.
The year 2022 will mark fifty years since the first intergovernmental conference on the environment was held in Stockholm in 1972. The Stockholm Conference on the Human Environment was a landmark event for many reasons, including creating the foundation for the United Nations Environmental Programme (UNEP). In its concluding document adopted in 1972, the Stockholm Declaration proclaimed that “A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference, we can do massive and irreversible harm to the earthly environment on which our life and well-being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes.” (para. 6)
Some fifty years later the question is whether we have crossed that point in history? In 2022, where do we stand and what should the 50th anniversary of the Stockholm Conference and the making of UNEP represent? One would have hoped that this important anniversary would be a celebration of how the world has successfully reduced and prevented pollution from all sources, prevented ecological degradation and halted the extinction of species and habitats. Unfortunately, while some progress has been made in some areas, overall the state of the planet’s ecological health, as reported by scientists, remains under threat. Some fifty years later we stand at an existential inflection point for the planet. In addition to the environmental threats that existed during the period of the Stockholm Conference, new ones have emerged, such as climate change, marine and plastic pollution, loss of biological diversity and even zoonosis caused pandemics. Air pollution remains a threat to the health of millions. Deforestation accelerated in many parts of the world since 1972. On the other hand, collective action through a robust legal framework successfully addressed the ozone depletion crisis, and in some parts of the world, species have been saved from extinction, showing that where there is a robust legal framework and collective action success can be achieved.
In 1972 there were but a handful of environmental instruments. This changed with the creation of UNEP. The next two decades witnessed a profusion of new instruments both hard and soft addressing the multiple threats to the environment: ozone, climate change, biological diversity, desertification, chemicals, pollution and host of regional instruments. In 1992 the Global Environmental Facility was established to provide financial assistance to the developing countries in addressing environmental threats in their quest for economic development. The concept of sustainable development, balancing economic development with environmental protection was introduced in the 1980s with the landmark “Our Common Future” report prepared by the Brundtland Commission. In 2015 States adopted the historic 2030 Agenda for Sustainable Development and 17 Sustainable Goals. Despite these many undertakings, recent scientific reports, such as the 2019 IPBES Global Assessment results of an unprecedented decline in biodiversity and the need for transformational changes; the 2020 UNEP Emissions Gap finding the world is still heading for a temperature rise in excess of 3°C this century – far beyond the Paris Agreement goals of limiting global warming to well below 2°C and pursuing 1.5°C. We are still short of meeting the Aichi Targets and according to the 2019 Sustainable Development Report “the world is not on track for achieving most of the 169 targets that comprise the Goals. Much more needs to happen – and quickly – to bring about the transformative changes that are required: impeding policies should urgently be reversed or modified, and recent advances that holistically promote the Goals should be scaled up in an accelerated fashion.” In short, this is a failure to meet legal commitments undertaken.
The 50th anniversary of the 1972 Stockholm Conference offers an opportunity for reflection and even some critical self-assessment to understand where we have failed and where we have succeeded. In 2018, in response to a request made by General Assembly resolution 72/277 the UN Secretary General submitted its report on Gaps in international environmental law and environment-related instruments: towards a global pact for the environment. The Report highlighted a number of gaps in the existing international environmental governance framework. This report was a sort of “self-assessment”. It identified a number of important gaps concerning international environmental principles, environment regulatory regimes, environment-related instruments, governance structure of international environmental law, and also implementation and effectiveness of international environmental law. The report was followed up with the establishment of an Ad Hoc Open Ended Working Group Towards a Global Pact for the Environment, pursuant to General Assembly resolution 72/277, with the mandate to address possible gaps in international environmental law and environment-related instruments, as appropriate, and, if deemed necessary, the scope, parameters and feasibility of an international instrument, with a view to making recommendations, which may include the convening of an intergovernmental conference to adopt an international instrument.
The final report of the Ad Hoc Open-ended Informal Working Group made several recommendations that included inter alia a “Call for renewed efforts at all levels to enhance the implementation of existing obligations and commitments under international environmental law, stressing the importance of enhanced ambition regarding means of implementation….” It is notable that the recommendation referred to a ‘renewed’ efforts. The assessment was clear that one of the underlying reasons for the lack of progress in fulfilling the challenges from fifty years ago lies in the need for stronger compliance by States with existing obligations and also the need for greater ambition.
The recommendations were forwarded to the UNEA for its consideration and to prepare a political declaration for a UN high-level meeting in the context of commemorating the 1972 Stockholm Conference and also strengthening paragraph 88 (strengthening UNEP) of the 2012 Rio Declaration on the “Future We Want”- Outcome Document. The task now falls upon States to formulate a new political declaration.
In 2015 the General Assembly adopted the 17 SGDs with a resolution entitled Transforming our world: the 2030 Agenda for Sustainable Development. The term “transformational” has been used in several recent reports (e.g. IPBES Assessment Report; Sustainable Development Report). Without question such transformational action on the part of States requires a robust and strong institutional structure as provided by UNEP. Transformation cannot be achieved without collective action. It is essential for States to take the opportunity provided in 2022 to recognize and commit to robust and transformational implementation and compliance with legal commitments.
In 1972 States adopted 26 far-sighted principles and the first of these included a clear declaration of the right of humans to live in an environment of quality that permits a life of dignity and well-being, and further highlighting the “solemn responsibility to protect and improve the environment for present and future generations.” This responsibility is not merely a moral one but entails legal responsibilities. The First meeting of UNEP General Assembly adopted a landmark decision on Advancing Justice, Governance and Law for Environmental Sustainability. It marked the first internationally negotiated document to recognize the term “environmental rule of law” and invited Governments and relevant organisations to reinforce international, regional and sub-regional cooperation to combat noncompliance with environmental laws. In 2019 UNEP issued the first ever Global Report on the Environmental Rule of Law, in which it noted: Too often, implementation and enforcement of environmental laws and regulations falls far short of what is required to address environmental challenges.
Strong measures for implementation and compliance with existing obligations, principles and processes that have been so painstakingly developed over the past 50 years are critical to transforming our current trajectory towards ecological failure to one of success, so that when the 100th year of the Stockholm Conference and making of UNEP is celebrated by today’s future generation it will be a declaration of success and gratitude for the transformational changes by this generation. The next political declaration should urge all for robust implementation of the rule of environmental law by all States.