Filling a Critical Gap in Global Environmental Governance

There are an increasing number of scientific alerts about threats to the global commons and of planetary boundaries being exceeded. Climate change is an obvious example, and chemical pollution including plastics is a recent concern. Despite the efforts of the UN system of institutions and many multilateral environmental agreements, the problems are accelerating and interacting in dangerous ways requiring urgent action. They can be distinguished by the fact that they extend beyond the national jurisdictions of sovereign states and often can be traced to non-state actors including multinational corporations, for which there are no existing governance institutions at the scale of the problem. Some may in part be the responsibility of international conventions or organizations, but these lack the capacity to pass binding legislation or to enforce agreements among states. What they have in common is the release into the environment of substances, including pollutants and wastes, directly or indirectly as a result of human activities. This suggests a possible innovative step forward in global environmental governance through giving UNEP the institutional capacity to define when such releases involve significant global risks and to adopt global legislation targetting those risks and the parties responsible for them, whether state or non-state actors.

Definition of the problem

With the rapid expansion of human activities of many kinds to the planetary scale, we are flooding the environment with many thousands of chemicals, molecules, substances, materials and objects in quantities or at a scale where they are causing, or threaten to cause, significant impacts to human health, environmental quality, ecosystem functions or future development possibilities. These include greenhouse gases, ozone-depleting substances, poisons, pesticides, agricultural chemicals, antibiotics, endocrine disruptors, carcinogenic substances, long-lived radioactive isotopes, space junk, materials for geoengineering, plastics and many thousands of other chemicals, newly invented or manufactured on a large scale beyond natural processes. Recent research shows that everyone is increasingly exposed to complex mixtures of these chemicals with health effects only beginning to be understood, and ecosystems everywhere are being increasingly disrupted with species disappearing. There will be many surprises in store.

National boundaries have no relevance to the movement of such substances, and there are so many that existing processes to negotiate and adopt multilateral agreements among states could never cover all of the risks, and do not adequately implicate non-state actors.

There is thus an urgent need to take a carefully circumscribed but significant step forward in international environmental governance by creating the capacity to define, manage and where necessary prohibit through global legislation the release into the environment of substances and materials presenting planetary risks. This can be built in large part on what already exists. By focusing specifically on substances and the processes of their creation and release, this sidesteps issues of national sovereignty. Indeed, it should protect national autonomy in responding to requirements designated as necessary for the common good of all. The other significant innovation is to extend the scope of this legislation to non-state actors, especially multinational corporations, that are often directly at the origin of the substances and materials concerned and that largely escape from national regulation.

Elements of the solution

This new step forward in global governance would require components briefly summarized as: scientific assessment, legislation and enforcement.

Scientific assessment: The first step is to identify the release of something presenting a global risk because of the nature or scale of the activity or process and its impacts, both at present and dynamically looking ahead to future threats. This would require defining the planetary boundary or limit beyond which damage would be consequent or irreversible, with costs outweighing benefits. In the present economic system, the benefits are immediate to the producers, while the costs are externalities left to be borne by the public, the environment and future generations. Scientific research has already done much in this direction, but it is not always directly linked to policy processes. The global institution should be able to call on all existing scientific assessment processes where relevant, such as the IPCC, or to create new ones for substances not presently covered. It would need the authority to obtain access to the necessary confidential information even when classified as commercial secrets or intellectual property.

Legislation: Where the science identifies a substance, group of chemicals, or other releases into the environment that go beyond a defined level of threat or risk to human and environmental well-being, a legislative body then needs to negotiate and adopt a legal text with global authority defining the specific substances to be regulated to stay within an acceptable level of impact, the global limit or planetary boundary for the occurrence or concentration of the substance, and the principles or criteria for the equitable assignment of responsibilities to stay within the defined limit. This could include common but differentiated responsibilities relevant to national circumstances and historical contributions, and should cover non-state entities like public or private corporations, and even individuals in certain circumstances. The legislation could include definitions of liability and compensation for damage caused by the substance incriminated.

Enforcement: It will be important to avoid the creation of a giant bureaucracy, but to orchestrate a coherent global process of respect and control under the adopted legislation. The aim should be polynodal enforcement through existing institutions as far as possible, both within the UN system and international conventions, and through national and sub-national governments, with the collaboration of civil society. In some cases, new institutions might be necessary with specific technical capacities for monitoring and surveillance. There will need to be judicial and dispute settlement capacities, again where possible by expanding the authority of existing institutions. Some substances will need to be phased out, prohibited, or restricted to defined uses, with provisions for fines, global taxes and other disincentives.

Implementation

The logical approach would be to build upon the existing capacities in the United Nations Environment Programme (UNEP), with the UN Environment Assembly (UNEA) evolving into the legislative body, as it already has universal membership. The chemical conventions and the UNFCCC will also contribute much experience, and would benefit from a mechanism to add binding legislation of the substance that concern them the most. The aim should be to complement and not compete with what already exists.

The Stockholm+50 meeting in 2022 would be a most appropriate place to launch the process to upgrade UNEP to a global environment agency empowered with these new functions to protect the planet as our common home from the many threats resulting from the uncontrolled and unlimited release of so many things into the environment.

Republished with slight edits by the Global Governance Forum on 1 March 2022: https://globalgovernanceforum.org/filling-a-critical-gap-in-global-envi…