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The most important OEWG recommendation was that the UNGA: “forwards
these [general] recommendations to the UNEA for its consideration, and to prepare,
at its fifth session in February 2021, a political declaration for a UN high-level meeting, … in the context of [the 50 year commemoration of the 1972 UN Conference
on Human Environment to be held in 2022], with a view to strengthening the implementation of IEL, and international environmental governance …” (OEWG Report
2019, 55(b)). This was a clear setback from the original proposals both in terms of
ambition and timing. Regarding ambition, the recommendation merely refers to a
vague and simple ‘political declaration’. This is a clear retreat from the objective of
a legally binding international instrument that enshrines general principles of environmental law. There is no reference to the GPE (or any instrument of its nature) in
the final recommendation. Nor is there any reference to the initiation of intergovernmental negotiations, but merely a UN high-level meeting. Regarding timing, a political declaration might be expected in 2022. The proponents aimed for adoption of
the GPE (or similar instrument) by 2020–2021. In sum, there was no mandate for
GPE negotiations to begin or for any instrument that would “constitute a step further
than the [soft law] Rio Declaration.” (Aguila and Viñuales 2019a, p. 9).
From a longer-term perspective, resort to a weak political declaration by 2022
may represent more of a temporary (albeit serious) setback for GPE proponents.
The consensus outcome has been interpreted by a OEWG co-chairs as at least providing a ‘first step in a continuing process.’(ENB 2019c, p. 1). The UNGA
President’s engagement in the process was also interpreted as providing “hope that
the doors will remain open to rescue the initial ambition of the pact” if articulated
as a contribution to the 2030 Agenda for Sustainable Development (ENB 2019c,
p. 11; Tigre 2019).
Why then did the OEWG deliver such a weak outcome? A full analysis of the
reasons is beyond the purpose of this chapter. However, it will briefly canvas a few
theories including; the need for a consensus outcome, the influence of the ‘gap
report’, and the lack of innovation and normative ambition.
As noted above, the OEWG recommendations to the UNGA represented the best
that a consensus process could deliver. The proponents stated: “[p]art of the explanation for … failure lies in the so-called “consensus” method, which allows a small
minority of countries (in this case, especially the United States, Brazil and Russia)
to block an initiative that is desired by a majority of States. It should be remembered
that it was a majority of States that adopted the Resolution of the UN General
Assembly on 10 May 2018 to initiate the Nairobi negotiations: 143 states in favour/5
states against.” (GPE Newsletter 27 May 2019). This frustration was reinforced at a
recent World Leaders Debate on the GPE. The UNGA President reflected on the
serious limitations of current international law and governance and lead debate on
“whether it is time to revise notions of consensus and unanimity in decisionmaking.”(Tigre 2019, p. 2).
A few observations are warranted here. First, the need for the OEWG to reach a
consensus outcome may well have been the legacy of a rushed process to gain the
original UNGA resolution mandating the consultations (UNGA Res 72/277). This
resolution was passed by recorded vote (rather than by adoption without vote) with
P. Taylor
The most important OEWG recommendation was that the UNGA: “forwards
these [general] recommendations to the UNEA for its consideration, and to prepare,
at its fifth session in February 2021, a political declaration for a UN high-level meeting, … in the context of [the 50 year commemoration of the 1972 UN Conference
on Human Environment to be held in 2022], with a view to strengthening the implementation of IEL, and international environmental governance …” (OEWG Report
2019, 55(b)). This was a clear setback from the original proposals both in terms of
ambition and timing. Regarding ambition, the recommendation merely refers to a
vague and simple ‘political declaration’. This is a clear retreat from the objective of
a legally binding international instrument that enshrines general principles of environmental law. There is no reference to the GPE (or any instrument of its nature) in
the final recommendation. Nor is there any reference to the initiation of intergovernmental negotiations, but merely a UN high-level meeting. Regarding timing, a political declaration might be expected in 2022. The proponents aimed for adoption of
the GPE (or similar instrument) by 2020–2021. In sum, there was no mandate for
GPE negotiations to begin or for any instrument that would “constitute a step further
than the [soft law] Rio Declaration.” (Aguila and Viñuales 2019a, p. 9).
From a longer-term perspective, resort to a weak political declaration by 2022
may represent more of a temporary (albeit serious) setback for GPE proponents.
The consensus outcome has been interpreted by a OEWG co-chairs as at least providing a ‘first step in a continuing process.’(ENB 2019c, p. 1). The UNGA
President’s engagement in the process was also interpreted as providing “hope that
the doors will remain open to rescue the initial ambition of the pact” if articulated
as a contribution to the 2030 Agenda for Sustainable Development (ENB 2019c,
p. 11; Tigre 2019).
Why then did the OEWG deliver such a weak outcome? A full analysis of the
reasons is beyond the purpose of this chapter. However, it will briefly canvas a few
theories including; the need for a consensus outcome, the influence of the ‘gap
report’, and the lack of innovation and normative ambition.
As noted above, the OEWG recommendations to the UNGA represented the best
that a consensus process could deliver. The proponents stated: “[p]art of the explanation for … failure lies in the so-called “consensus” method, which allows a small
minority of countries (in this case, especially the United States, Brazil and Russia)
to block an initiative that is desired by a majority of States. It should be remembered
that it was a majority of States that adopted the Resolution of the UN General
Assembly on 10 May 2018 to initiate the Nairobi negotiations: 143 states in favour/5
states against.” (GPE Newsletter 27 May 2019). This frustration was reinforced at a
recent World Leaders Debate on the GPE. The UNGA President reflected on the
serious limitations of current international law and governance and lead debate on
“whether it is time to revise notions of consensus and unanimity in decisionmaking.”(Tigre 2019, p. 2).
A few observations are warranted here. First, the need for the OEWG to reach a
consensus outcome may well have been the legacy of a rushed process to gain the
original UNGA resolution mandating the consultations (UNGA Res 72/277). This
resolution was passed by recorded vote (rather than by adoption without vote) with
P. Taylor