Our Participation at the UN Meeting on International Environmental Law in Kenya
A United Nations Inter-governmental Negotiation Meeting took place in Nairobi, Kenya, from March 18-20, 2019. This meeting was a follow up session after the previous one in January 2019 and organized by an open ended working group of the United Nations Environmental Protection (UNEP). The purpose of it was three-fold: to discuss further on the urgency and importance of international law on environment; to look at the gaps and challenges of implementing international environmental laws at national level; and to look at the guiding principles for such laws.
Civil society organizations, including Non Governmental Organizations accredited to the Economic and Social Council of the United Nations (UNECOSOC) were also invited as observers. Brother Lawrence Kibaara, SVD, the Executive Director of VIVAT Kenya and myself had an opportunity to participate in it.
GAPS OR CHALLENGES?
The UN Secretary-General, Antonio Guterres, in his report to the General Assembly of the United Nations at its 73rd Session in November 2018 under the title: “Gaps in international environmental law and environment-related instruments: towards a global pact for the environment“ (http://www2.ecolex.org/server2neu.php/libcat/docs/LI/MON-094092.pdf) indicates five gaps and discrepancies in international environmental laws and environment-related instruments. First, “There is no single overarching normative framework that sets out what might be characterized as the rules and principles of general application in international environmental law…”; Second, “international environmental law is piecemeal and reactive. It is characterized by fragmentation and a general lack of coherence and synergy among a large body of sectoral regulatory frameworks….”; third, “The articulation between multilateral environmental agreements and environment-related instruments remains problematic owing to the lack of clarity, content-wise and status-wise, of many environmental principles….”; fourth, “The structure of international environmental governance is characterized by institutional fragmentation and a heterogeneous set of actors, revealing important coherence and coordination challenges. International courts and tribunals often stress the lack of international consensus concerning environmental principles.” The implementation of international environmental law is challenging at both the national and international levels. National implementation is constrained in many countries by the lack of appropriate national legislation, financial resources, environmentally sound technologies, and institutional capacities. At the international level, implementation is constrained by the lack of clarity of many environmental principles.
These above mentioned gaps and discrepancies were brought to the attention and discussion of Member States, UN Agencies and civil society organizations in Nairobi during this negotiation meeting. However, there was no agreement on whether to name these as gaps and discrepancies or as challenges. Secondly, some countries like China and Brazil tended to look at some of the international laws and instruments more as traditional or indigenous laws imposed on international communities which could violate State sovereignty.
This negotiations also discussed the need for common guiding principles for international environmental laws. Referring to Rio Declaration (1992) (https://www.merriam-webster.com/dictionary/mandate) participants agreed on the following basic principles: the precautionary principle which states that, “if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence”; the prevention principle which emphasizes on doing no harm to the people and planet; “the polluter pays” principle in which it demand that polluters must bear the real costs of their pollution; the integration principle which states that environmental protection requires that due consideration be given to the potential consequences of environmentally fateful decisions; and the public participation principle which mandates extensive public access to government information on the environment.
As observers, civil society organizations present in the meeting came together and made statements emphasizing the importance of identifying the major issues of environmental problems and the inclusion of multi-stakeholders in the process of drafting an international environmental law. It also emphasizes the urgency and importance of budgeting a policy at the national level to support civil society initiatives in environmental rehabilitation and protection-related activities. The meeting ended with an agreement to hold a follow-up meeting in June 2019 before presenting the results to the General Assembly in September or October 2019.
Prior to the June meeting, civil society organizations have already planned to have a series of discussions to gain more input on the draft agenda for an international environmental law. The hope for such a law is a series of open-ended working group meetings and that Member States will come to an agreement on an international law that is legally binding.
By Robert Mirsel, SVD
VIVAT Office New York