What if the Global Pact for the Environment took the form of a simple declaration: a Trojan horse for better implementation of environmental standards?

In the months following its adoption by the Club of Jurists in 2017, the Global Pact project caused a stir. Supported by influential heads of state, it was discussed in the UN General Assembly and led to a report in 2018 by the UN Secretary General. The latter recommends the development of a “comprehensive and unifying international instrument that gathers all the principles of environmental law” (p. 2). An open-ended working group was then created. At the end of its meetings, the Working Group finally suggested that the draft Pact be embodied in a political declaration. If one can guess the disappointment of the promoters of the Pact who already saw the Pact becoming a binding text, nothing less than the international treaty setting a common core of basic environmental protection standards. However, one should not neglect the potential that a simple declaration and especially the negotiation process leading to the emergence of a consensus can have on the implementation of the norms it contains. In this sense, somewhat like a Trojan horse, such a declaration has the potential to succeed where a formal treaty might fail.^[1]

1. Multilateral negotiation of a declaration as a pretext for the emergence of a collective legal consciousness 

Despite popular belief, while the adoption of a treaty may produce the desired effects, it is not in all cases the preferred solution. To think otherwise would be to ignore the ineffectiveness of many treaties and to attach too much importance to the end result compared to the value of the process itself. It is in this sense that the international legal order is distinct: the normative production carried out within it proceeds from a unique logic that is more akin to the creation of a collective legal consciousness among States, and this is independent of the nature of the source emanating from the process. In other words, whether the process leads to the adoption of a formal treaty, a non-conventional concerted act or a simple declaration, it is the level of adherence of States to the norm that will ultimately determine the chances that the norm will be effectively implemented.

In the area of environmental protection, the UN Secretary General’s report agrees that several international treaties already exist. The normative framework therefore already exists. But it is fragmented, sectoral, imprecise and, above all, suffers from a lack of international consensus. This affects its effectiveness and its application.

That said, in a divided international society, the adoption of a treaty could have been undermined by the selfish interests of States and lead to a watered-down text in which the quality of the norms is often intentionally poor and the obligations vague and rather soft, despite being enshrined in a binding instrument. The negotiation of a simple declaration could therefore allow States to have a real dialogue, and ultimately identify and define without ambiguity a common core of principles applicable to all.

In this respect, the process that led to the adoption of the ILO Declaration on Fundamental Principles and Rights at Work in 1998 is rich in lessons. It shows how important a simple declaration can be in the process leading to the emergence – complex and laborious – of an international consensus that is essential to the creation of universally applicable standards, regardless of the existence of a traditional treaty instrument.

2. The 1998 ILO Declaration: A tool for the promotion and implementation of fundamental labor rights and principles

The 1998 ILO Declaration must be seen first and foremost as a promotional instrument. It set out fundamental rights and principles that all should respect. It established a basic human standard that was intended to transcend borders. It set a limit to globalization by trying to avoid a race to the bottom in social standards. Above all, it aimed to strengthen technical cooperation activities and was a common objective of the multilateral system.

The declaration currently being negotiated on environmental matters is not to be equated with the 1998 ILO Declaration. The latter is different in several ways: it was adopted in a specific context, following the particularities of the ILO, and its follow-up mechanism is based on article 19(5)(e) of the ILO Constitution, which obliges even States that have not ratified the fundamental conventions to report regularly. The fact remains that the multilateral process leading to the adoption of these two declarations has the potential to produce similar effects. Of course, this potential can only be realized if a declaration emerges from the current negotiations and especially if these negotiations produce a strong consensus.

As a reminder, between June 1994 and March 1996, discussions on the possible adoption of a new international instrument within the ILO had focused on the elaboration of a binding instrument. It was therefore late in the negociation to converge on the adoption of a non-binding declaration[i]. In the end, after four years of negotiations, debates and intense consultations on the possible adoption of a new international instrument within the ILO, a simple three-page Declaration was adopted. However, the negotiations allowed to go even further in the implementation of labor standards already enshrined in Conventions. Indeed, the different parties involved identified four rights and principles that they described as fundamental and that are the subject of an international consensus: freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labor, the effective abolition of child labor and the elimination of discrimination in respect of employment and occupation.

During the years of negotiation leading to the determination of the rights and principles to be included, representatives had the opportunity to express their perception of these rights and principles, and to explain the difficulties, limitations and obstacles they faced in effectively implementing them within their legal order. These explanations, often taking the form of justifications, far from having the effect of weakening the principles in question, helped to confirm their importance and the objective of making them universally effective. In this sense, the multilateral negotiation process itself produced results, even before the Declaration was adopted. Indeed, through the consultation of policy makers, the issue of fundamental rights and principles at work was put back on the policy agenda at the national level. Moreover, during the negotiation period and in the years that followed, a record number of ratifications of conventions relating to the themes of the four fundamental rights and principles were recorded.

Therefore, beyond the result, the negotiation itself allowed for certain advances. The process itself has allowed the four fundamental rights and principles to be crystallized as customary norms and erga omnes obligations that can no longer be called into question. A true collective legal consciousness has thus emerged from this negotiation process.

3. Political Declaration: an iron fist in a velvet glove?

It is often forgotten that the adoption of a non-binding legal instrument such as a declaration has the potential to produce significant legal effects. In some cases, a declaration can do even more than a binding text, as it is not subject to acceptance by States and entry into force. Nor is it threatened by the application of reservations or withdrawal. It is true that it is not binding, but one should not automatically deduce from the form of an instrument that it is necessarily non-binding, devoid of any legal effect. As Georges Abi-Saab reminds us: “juridicity does not necessarily mean obligatoriness, and legal relevance or effect is not reduced solely to obligatory effect”[ii]. [Our translation]

A non-binding instrument, in this case a declaration, certainly creates legal effects as soon as it is adopted. Its legal scope cannot be reduced to its mere justiciability, which would be tantamount to saying that a norm or an instrument is only legal if it can be applied by a court[iii], or to the existence or not of a sanction in case of non-compliance; the normative and coercive levels are not the same thing.

As the International Court of Justice recalls in its advisory opinion on the legality of the threat or use of nuclear weapons, General Assembly resolutions, although non-binding, can have a normative effect and support the existence or emergence of opinio juris[iv]. A declaration may also have a permissive effect in law, and even if its adoption does not entail an obligation to perform it in good faith in the same way as if it were a treaty concluded and ratified by them, States are still bound by the principle of good faith in their international relations.

Moreover, although a declaration does not create an obligation automatically entailing the responsibility of the author in case of breach, the declaration is likely to create an expectation, an anticipation and, when subjects of law adjust their behavior accordingly, it sometimes becomes possible to apply the principle of estoppel. Indeed, from a declaration stating fundamental principles necessarily follows a form of moral commitment, a joint promise, on the part of those who vote in favor of it, and consequently, a mutual right of control over the way in which other countries apply it.

The subject matter of a declaration acquires an international character because of the interest of its authors. This probably explains the increasingly systematic inclusion of the four fundamental labor rights and principles in free trade agreements: States recognize their fundamental value and consider it important to recall them. They thus agree to relegate commercial freedom to the background.

It is therefore sometimes necessary to consider that a simple Declaration can produce more effects than a treaty. A text, regardless of its legal form, declaring the existence of a common base of universal principles, drafted with precision, of general application in environmental law and defining these principles in such a way as to have a common understanding of each of them, could constitute a turning point in the history of global environmental governance. A soft law tool could finally prepare the mindset for the later adoption of a binding instrument.

The adoption of a Declaration has a number of advantages due to its flexible nature and is a solution to the fragmented nature of international environmental law, the reorganization of which depends on the egoistic desires of States. A consensus must emerge so that the environment is protected globally and without reservation. However, we must face the facts: the adoption of a treaty would most probably not make it possible to achieve these results. It is in this sense that a simple political declaration can indirectly make it possible to achieve what sometimes seems impossible to attain otherwise. As René-Jean Dupuy remind us, « beyond appearances, a simple declaration or a short resolution can carry recognized, accepted and universally respected principles»[v].

^[1] This Blog post is a summary of a french chapter to be published : Geneviève Dufour, « Et si le Pacte mondial pour l’environnement prenait la forme d’une simple déclaration : un cheval de Troie pour une meilleure mise en œuvre des normes environnementales ? » dans Olivier Delas, Olivier Bichsel et Baptiste Jouzier, L’après COVID-19 : Quel multilatéralisme face aux enjeux globaux ? Regards croisés : Union européenne – Amérique du Nord – Asie, Bruxelles, Bruylant, 2021.

[i] ILO, Administration Council, Strengthening the supervisory system for ILO standards, OIT GB.264/6.

[ii] Georges Abi-Saab, « Éloge du droit assourdi; Quelques réflexions sur le rôle de la soft law en droit international contemporain » dans Nouveaux itinéraires en droit. Hommage à François Rigaux, Bruxelles, Bruylant, 1993 59 p. 62.

[iii] South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second phase, Judgment, I.C.J. Reports 1966, p. 6, par. 86: “In the international field, the existence of obligations that cannot in the last resort be enforced by any legal process, has always been the rule rather than the exception”.

[iv] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, pp. 254 – 255.

[v] Texaco Overseas Petroleum Co and California Asiatic Oil Company v. Libya, [1977] 104 J.D.I. 350, p. 379, par. 87. Original text : « Au-delà des apparences, une simple déclaration ou une courte résolution est susceptible de porter en elle des principes reconnus, acceptés et universellement respectés ».