Najib Saab, issue 268, July 2020

Since the United Nations Conference on the Human Environment released its Stockholm Declaration in 1972, more than a thousand international agreements dealing with specific environmental issues have emerged. The question is: To what extent have these agreements led to environmental action, and do we need more of them?

Agreements among countries are the main tools that allow cooperation within the framework of international law, to deal with common cross-border environmental issues: from waste and chemicals, to biodiversity, desertification and the protection of the seas and oceans, to protection of the ozone layer and climate change.

While many of these agreements are considered soft laws and compliance depends on the goodwill of the country in question, others are governed by binding laws. But imposing the provisions of these agreements often faces problems in terms of deciding which courts are fit to rule on the violations and solve disputes between parties. This is due to the overlaps between the sovereignty of countries over their resources and the extent to which activities within their borders cause harm to neighboring countries and the global environment in general. At the same time, judges in international courts often argue that the provisions of international environmental agreements are not clear enough to rule on some of the cases brought before them. So will the solution lie in strengthening existing agreements or in developing a new binding agreement based on general principles? The fact is that ambiguity had been intentional when agreements were negotiated, as the only way to reach the consensus required.

The foundation of global environmental governance was laid out at the United Nations Conference on the Human Environment, held in Stockholm on 5 June 1972, when a declaration of 27 principles was issued. These general principles, which are not legally binding, defined natural environment as a common human heritage that must be nurtured, harnessing resources in a sustainable manner which allows regeneration. The "Stockholm Declaration" addresses issues of resource management, urbanization, land use and pollution, among others. This was the first international attempt to tackle the impact of human activity on the environment.

The Stockholm Conference resulted in the establishment of the United Nations Environment Program (UNEP). The Egyptian scientist Mustafa Kamal Tolba, who played a pivotal role in establishing and leading this international environmental organization until 1992, worked during his founding mandate to launch international agreements governing environmental action. He understood, with his vision and by virtue of his political experience, that only agreements based on specific goals and a timetable for implementation could positively impact the environment. Tolba did not want to head an international civil society organization whose role is limited to protests and demands. Rather, he sought to turn UNEP into an active force in the international arena, by developing environmental treaties and protocols, even if compliance with them in some cases was voluntary. With specific rules and controls in place, it was possible, at least, to defame violators who fail to comply with what they had agreed to, and subsequently to seek enforcement.

Tolba, himself coming from a third world country, realized from the outset that the implementation of environmental agreements requires funding. The right of developing countries to development cannot be impeded without proper compensation, after decades of industrialized countries exploiting the world's natural resources and polluting without restrictions. So he insisted that every environmental agreement be accompanied with a fund to support its implementation. The Montreal Protocol, meant to finance action to protect the ozone layer by shifting to safe alternatives to the ozone-depleting chlorofluorocarbons, is the most prominent example of this. The Multilateral Fund for the Implementation of the Montreal Protocol was the decisive factor in achieving the interim goals of the protocol ahead of schedule. When he passed away in 2016, The Washington Post and The Economist led international media in describing Tolba as the father of the ozone agreement and the man who saved millions of lives.

The reason for success here was not confined to setting legally-binding conditions in the protocol; rather, it was the financial support to implement its provisions. Other agreements did not have a similar implementation mechanism attached to specific targets, including biodiversity, seas and desertification. The climate fund has not yet been activated properly, which resulted in a slowdown in achieving its goals.

The international conference on Environment and Development, known as the Earth Summit, which was held in Rio de Janeiro in 1992, resulted in the "Rio Declaration" and Agenda 21. They set specific principles for development that are compatible with environmental requirements. The "polluter pays" principle is perhaps the most practical outcome that emerged from this conference. If the foundations of international environmental law were laid down in Stockholm and Rio de Janeiro, they were enhanced in New York in 2015 with the agreement on 17 sustainable development goals, encompassing the environment, to be implemented by 2030. These include eliminating poverty and hunger, ensuring clean water, energy and education for all, rationalizing natural resource management by changing consumption and production patterns and tackling climate change. Thus, the principles of environmental stewardship and resource management were supplemented by detailed objectives, which countries unanimously committed to implement. However, obligations remained voluntary.

France, in conjunction with the agreement on the Sustainable Development Goals, led a campaign to establish a global pact for the environment, which would serve as a basis for a binding international environmental law. The United Nations General Assembly organized several international meetings to discuss the viability of such a pact, but ended without an agreement. The essence of the dispute remains that developing countries object to imposing binding restrictions on development within their borders, unless accompanied by financial aid. Rich industrialized countries believe that the time has come for developing countries to establish good governance and fight corruption, in order to obtain conditional aid that is mainly in the form of investments, not donations. While both arguments are viable, what really continues to obstruct compromise is the lack of will on all sides to enact binding rules which govern international environmental law.

The priority must be to activate existing environmental agreements, because they already include enough principles that can be invoked in international law. But success depends on putting in place a financial implementation mechanism in which everyone participates, that rewards those who comply with the law, and punishes offenders. As for the International Pact for the Environment, the fact is that such a pact has already been laid out half a century ago in the Stockholm Declaration. It is not new texts that are required, but a serious political decision for implementation, accompanied by proper finance mechanism.