Courtesy : globalpactenvironment.org
Environment whitepaper
During the United Nations Summit on sustainable development in September 2015,
the General Assembly of the United Nations adopted the “2030 Agenda for Sustainable Development” as a new framework for global development. The Agenda is
“a plan of action for people, planet and prosperity”. It shall enable the elaboration
of policies to be implemented in this area around defined objectives and concrete
targets. The Agenda relies on seventeen sustainable development goals (SDGs),
driven by the success of the millennium development goals (MDGs) adopted in
- In order to ensure their practical application and monitoring, these goals are
complemented by 169 indicators. The SDGs are part of the new global strategy in
that they do not establish sectorial obligations but rather goals across all sectors.
They are relevant to each country, irrespective of its level of development, the private
sector and civil society, so as to promote prosperity and to protect the planet. Thus,
the SDGs express a holistic vision, which places the international environmental
governance in a more general framework, including economic and social objectives.
While these goals do not have binding power by themselves, they nonetheless
embody a universal approach with a general scope and set a common framework for
action for all those concerned by development and the environment, including State
entities and others.
1.1.2. The Global Pact for the Environment as an expansion
of the Paris Agreement’s momentum
The Paris Agreement, even if it is not a general instrument but rather a sectorial
agreement, also falls within this new movement, the necessity of which needs no
further demonstration. The 21st Conference of the Parties to the United Nations
Framework Convention on Climate Change (COP21) has led to the much-anticipated adoption of a universal agreement on climate. The chosen strategy lies in the
elaboration of a common objective: the reduction of anthropogenic greenhouse gas
concentrations in the atmosphere in the long run by means of an agreement that is
simultaneously sustainable, fair, active and tiered. The adoption and rapid entry into
force of the Paris Agreement illustrate the new perspective that prevails on the international scene towards a global and better coordinated care of environmental issues.
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The SDGs lack legal and expressly binding power and the Paris Agreement deals
mainly with a specific legal regime of climate change mitigation. Regardless of their
importance and of their impact on environmental issues, the Dra! Global Pact for
the Environment proposes the adoption of a legal document with a general ambit
and binding value to create a unifying perspective that has become urgently needed.
1.2. The dynamics of the constitutionalisation
of environmental principles
The principles of environmental law have spread throughout national laws. Their
fundamental nature has led numerous States to raise them to the highest level in
the hierarchy of norms: in national constitutions. The observation of national practices reveals that this movement is general, strong and deep.
The Global Pact for the Environment codifies fundamental principles that are to be
implemented, inter alia, at the national level. In that way, it will support, accompany and frame the environmental constitutionalism currently developing in domestic legal systems.
1.2.1. The consecration of environmental principles
in national constitutions
Environmental constitutionalism refers to norms responding to environmental
issues becoming enshrined at the top tier of domestic legal systems’. Beyond specific statutes and regulations, there is a gradual process of constitutionalisation of
environmental rights and obligations. This movement testifies of the existence of
a large consensus on the main environmental principles, shared around the world.
It illustrates the desire to fill a gap, specifically regarding the invocability of major
international principles. The constitutionalisation of fundamental principles leads to
the strengthening of their status in domestic law and the facilitation of their implementation on a more global level, better than their embodiment in a specialized and
sector-based approach. The introduction of the principles reflected in the dra! Global
Pact for the Environment in domestic constitutional laws reflects a growing consensus on these principles. This is also a means of ensuring their influence and effective
implementation at the national level.
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Since the adoption of the 1972 Stockholm Declaration, a very large majority of
countries have included related provisions in their constitutions. For example, these
constitutions may now include substantial rights, as is the case of the Beninese,
Chilean, Colombian, Turkish, Kenyan, Hungarian and Spanish constitutions, which
explicitly establish the right to live in a healthy environment for all citizens. They
may provide procedural rights, traditionally covering the rights to information, public
participation in decision-making and access to justice in environmental matters.
These procedural rights o!en come together with substantive rights. Some national
constitutions further this logic by establishing environmental duties and obligations
on individuals or by imposing environmental policies on State and non-State actors.
Article 225 of the Constitution of Brazil, a!er the consecration of the right to a
balanced environment, states that public authorities and civil society have a duty to
defend and protect it for present and future generations. The Chinese Constitution, in
its Article 26, impose the obligation to protect the environment and fight pollutions
on the State. The Uruguayan Constitution specifically states that the protection of
the environment is of common interest, acting as a guideline for public policies. This
is also the case with the constitutions of Qatar and Chile, which make it possible for
law-makers to put environmental values before other rights and freedoms. The development of other provisions related to environmental protection confirms this trend,
such as the establishment of the right to access water, the rights of nature, etc.
Some States have even constitutionalized climate change stakes, like the Dominican
Republic, which subjects the organisation of the territory to the objectives pursued
in this respect.
The Charter of the Environment, adopted by France in 2004 and included in its
“block of constitutionality”, fully participates in this movement. It includes substantive rights and duties of individuals, which come together with procedural rights
and public policy guidelines. The Charter is thus the entry point to the fundamental
principles of environmental law within the national constitutional sphere. It establishes, inter alia, the right to a balanced environment (Article 2), the prevention
principle (Article 3) and the precautionary principle (Article 5), which can now radiate
throughout French law.
Thus, a large consensus appears on the environmental principles that are considered
fundamental enough to be consecrated in national constitutions, at the highest level
of the normative hierarchy. The UNEP has also presented this movement in its “Judicial Handbook on Environmental Constitutionalism”.
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1.2.2. The appropriation of environmental principles
by Supreme Courts
This constitutional impetus is transposed onto the case-law of national courts, especially that of supreme courts, which have to rule on these environmental provisions.
Case-law is an additional vehicle for the development and the influence of these
principles. It facilitates their implementation by clarifying their scope and defining
more precisely their content. For example, the Constitutional Court of Peru clarified
the scope of the right to a balanced and adequate environment. It found, based on
Article 22 of the Constitution, that the effectiveness of this right includes the right
to enjoy the environment and the right to its preservation. The Supreme Court of
the Philippines sought to clarify the concept of «healthy and balanced ecology». It
decided that the list of the types of complaints that may be submitted under this
heading is entirely open. The Constitutional Court of Ecuador has also embraced
constitutional guarantees related to the environment. In many cases, it has decided
that the right to a healthy environment was breached by certain modes of production
or by the degradation of certain natural areas, despite the economic interests at
stake. The Latvian Constitutional Court, which is particularly active in environmental matters, has repeatedly held that plans for the use and development of local
territories are contrary to Article 115 of the Constitution, which protects the right to
a healthy environment. It even invoked the Stockholm Declaration and the Aarhus
Convention to support its reasoning and to require the government to review the
contested plans.
National courts, and especially supreme courts, thus play a crucial role in the implementation of environmental law principles, including those that should be recognized
by the Global Pact for the Environment. Whether it is the affirmation of human rights
or the recognition of specific obligations in the environmental field, the recognition
of these principles at the constitutional level favors their introduction to the national
sphere and strengthens their justiciability. These objectives are among the priorities
of the Global Pact for the Environment project.