Phase IV: Nairobi Sessions and Adoption of Recommendations (Jan. 2019 - June 2019)

• Author: Maria Antonia Tigre
• Pages: 101-184

101

Chapter 4: Phase IV: Nairobi

Sessions and Adoption of

Recommendations

(Jan. 2019 – June 2019)

After the adoption of the General Assembly Resolution no. 72/277 and

the OEWG’s organizational session held at the UN Headquarters,

three substantive sessions followed at the headquarters of the UNEP

in Nairobi, Kenya. is chapter focuses on the content of these discussions.

Phase IV, entitled “Nairobi Sessions and Adoption of the Recommenda-

tions,” relates to the work done by the working group between January and

May 2019. Sections I to IV follow the Nairobi sessions chronologically, iden-

tifying t he factual information related to the meetings. Section I covers the

rst substantive session in Januar y 2019, which was characterized as a “stock-

taking” opportun ity, as delegates considered the UNSG’s report while exam-

ining the current state of international environmental law. Section II covers

the second substantive session in March 2019. e second session included a

more focused discussion about potential recommendations from the working

group on options to respond to possible gaps in international environmen-

tal law and environment-related instruments. To guide the discussion, the

Co-Chairs pos ed specic questions designed to facilitate initial reections on

the main themes of t he working group: principle s, governa nce, implemen-

tation, and specic regulatory regimes of environment-related instruments.

Section III relates to the draf t recommendations circulated by the Co-Chairs

in between sessions. Section IV covers the third and nal substantive session

in May 2019 and the subsequent adoption of recommendations by the work-

ing group.

Section V then specically analyzes t he main challenges in international

environmental law and policy raised by the delegates during the Nairobi

sessions. Given that many topics raised in Nairobi were discussed on more

than one session, these are ana lyzed jointly by topic, referring, when rel-

evant, to how the UNSG’s report also portrayed them. e section addresses

the following points: (A) what is a gap; (B) fragmentation of international

environmental law; (C) matters of process; (D) governance of international

102 Gaps in International Environmental Law

environmental law; (E) implementation; (G) environment-related issues; and

(H)environmental principles. ese show how delegates view these issues and

their most signicant concerns, showing how they were u ltimately addres sed

in the nal recommendations. Section VI oers a geopolitical ana lysis of the

position of States on whether they were favorable to the adoption of a new

instrument related to the codication of principles. is section provides an

overview of where we currently stand politically, showing how such a pro-

posal is supported. e Nairobi Outcome Document and ICEL’s Analysis

of the Nairobi Outcome Document are reprinted at the end of this chapter

(Document 4 and 5, respectively).

e timeline below portrays Phase IV.

Figure 4: Phase IV Timeline “Nairobi Sessions and Adoption

of OEWG’s Recommendations” (Jan. – June 2019)

Jan. 2019

First Substantive

Session

Mar. 2019

Second

Substantive

Session

May 2 019

Third Substantive

Session and adoption

of Recommend ations

Jul y 2019

ICEL Note on t he

Recommendations

I. January 2019: First Substantive Session

e rst substantive session of the OEWG convened from 14-18 January

2019.1 Based on the agenda and programme of work, the week-long gather-

ing consisted of ten meetings.2 ese were mostly dedicated to discussing

1. See Amal Mudallali and Francisco Duarte Lopes, Letter to UN Members from the co-chairs of the

Ad Hoc Open-Ended Working Group Established by the General Assembly Resolution 72/277 invit-

ing Member States to participate in the rst substantive session (Dec. 6, 2018), available at https://

wedocs.unep.org/bitstream/handle/20.500.11822/27168/Invitation.pdf?sequence=1&isAllowed=y.

2. Based on the provisional agenda agreed at the organizational session, the agenda was adopted as fol-

lows: “1. Opening of the session. 2. Adoption of the agenda and programme of work. 3. Financing

of the activities of the ad hoc open-ended working group. 4. General statements. 5. Consideration

of the report of the Secretary-General. 6. Provisional agenda and dates for the second substantive

session. 7. Other matters. 8. Closure of the rst substantive session.” UNGA, Ad hoc Open-Ended

Working Group Established Pursuant to General Assembly Resolution 72/277, First Substantive

Session, Nairobi, 14–18 January 2019, Provisional Agenda and Annotations ereto for the First

Chapter 4: Phase IV: Nairobi Sessions & Adoption of Recommendations 103

(Jan. 2019 – June 2019)

each section of the UN Secreta ry-General’s Report, “Gaps in international

environmental law and environment-related instruments: towards a global

pact for the environment.”3 e all-encompassing Report provided delegates

with an opportunity to engage in a “stocktaking” exercise, e xamining the

current state of international environmental law4 based on the UNSG’s

ndings.5 Approximately 288 participants attended the meeting, including

government delegates from 109 countries, representatives of UN bodies, sec-

retariat units and convention secretariats,6 representatives of international

organizations,7 and members from 67 non-governmental organizations.

Delegates received the UNSG’s Report with mixed reviews. Many del-

egations welcomed its ndings, considering it provided a comprehensive

overview of the existing gaps and was a sound basis for fur ther discussion.8

Others were wary of its limited eect a nd invited a more extensive dialogue

on challenges, using the Report only as an initial g uide.9 Some Member

States expressed concern about its contents, requesting more up-to-date

information and the use of empirical evidence to conrm its outcomes.10

Substantive Session of the Ad Hoc Open-Ended Working Group Established Pursuant to General

Assembly Resolution 72/277, A/AC.289/3 (6 December 2018).

3. UNGA, A/AC.289/6/Rev. 1 (June 13, 2019), Report of the Ad Hoc Open-Ended Working Group

Established Pursuant to General Assembly Resolution 72/277 (para. 6).

4. e provisional agenda was adopted as follows: (1) Opening of the session; (2) Adoption of the

agenda and programme of work; (3) Financing of the activities of the ad hoc open-ended working

group; (4)General statements; (5) Consideration of the report of the Secretary-General; (6) Provi-

sional agenda and dates for the second substantive session; (7) Other matters; (8) Closure of the rst

substantive session. OEWG, A/AC.289/3, Provisional Agenda and Annotations ereto for the First

Substantive Session of the Ad Hoc Open-Ended Working Group Established Pursuant to General

Assembly Resolution 72/277 (Dec. 6, 2018).

5. UN Environment, Member States Debate the Need for a Global Pact for the Environment (January

28, 2019), available at https://www.unenvironment.org/news-and-stories/story/member-states-

debate-need-global-pact-environment.

6. Department for General Assembly and Conference Management; Oce of the United Nations High

Commissioner for Human Rights (OHCHR); Secretariat of the Basel Convention on the Control of

Transboundary Movements of Hazardous Wastes and eir Disposal, the Rotterdam Convention on

the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International

Trade and the Stockholm Convention on Persistent Organic Pollutants; Secretariat of the Convention

on Wetlands of International Importance especially as Waterfowl Habitat; Secretariat of the Minamata

Convention on Mercury; Secretariat of the Montreal Protocol on Substances at Deplete the Ozone

Layer; United Nations Development Programme; United Nations Oce at Nairobi.

7. International Chamber of Commerce, International Committee of the Red Cross, International

Federation of the Red Cross and Red Crescent Societies, League of Arab States.

8. UN Environment, supra note 5.

9. Amal Mudallali and Francisco Duarte Lopes, Letter to UN Members from the co-chairs of the

Ad Hoc Open-Ended Working Group Established by the General Assembly Resolution 72/277

circulating the oral summary of the rst substantive session (Jan. 29, 2019), available at http://

wedocs.unep.org/bitstream/handle/20.500.11822/27261/Co-chairs.letter.25%20January%20

2019.pdf?sequence=110&isAllowed=y; Annex available at http://wedocs.unep.org/bitstream/

handle/20.500.11822/27261/Oral%20summary.FINAL.pdf?sequence=124&isAllowed=y.

10. UN Environment, supra note 5.