Improving the Status Quo of Sustainable Governance
Global Opportunities for the Environmental Rule of Law
The Environmental Rule of Law is one of the key principles to save planet earth for future generations. Every regulation for environmental protection can only have an impact to the extent that it is accessible, applied and enforced. Due to differing legal and geographic conditions, there is not ‘the only right way’ to enhance environmental protection across the globe. Nonetheless, this blog post will show that there are common practices benefiting people in different regions. The most important questions concerning the status quo of the Environmental Rule of Law are led by measurements of effectiveness (Platjouw et al., p. 4): Do national provisions ensure environmental justice? Are governance and compliance mechanisms able to protect the environment? And how could existing laws and strategies be improved across jurisdictions? To answer those questions, a deeper look at the challenges across different regions is essential. Therefore, this paper provides a brief analysis of the most important issues in China, India and the Association of Southeast Asian Nations as significant economic and ecological centres in Asia. It also evaluates the situation in the United States of America (USA) and the European Union (EU) as two prominent players within the Western world.
Scope of the Environmental Rule of Law
Before analysing the challenges and possible solutions in various regions it is necessary to define the scope of the Environmental Rule of Law by addressing its core elements and clarifying the disputed relation to human rights. On this basis, this blogpost will also delineate implications for future trends.
In 2013, the United Nations Environment Programme (UNEP) Governing Council determined in Decision 27/9 the essential pillars of the Environmental Rule of Law principle: An independent judiciary applying binding law for environmental protection, access to information to ensure sustainable transparency and access to justice to bring breaches to court, if governmental or private institutions harm their duties to protect the environment. The First Global Report “Environmental Rule of Law” by UNEP (2019) contributed similar core elements that remain essential for an order-based consistent interpretation of the principle: Clear and implementable environmental laws need to provide the public with comprehensive participation rights. Institutions and decision makers must act with integrity and in recognition of the mutually reinforcing relationship between rights and the Environmental Rule of Law (Global Report, pp. 20-26).
Inclusion of Human Rights
The UNEP Global Report supports a rights-based approach to environmental protection, which is understood as a normatively based conception, directed towards the protection of those rights (Global Report, p. 139). As an example, the Nepal Supreme Court stated the inclusion of environmental protection in the right to live in a case of water, land and air pollution by a factory that had endangered the lives of local residents and their property. While accepting the value of the ecosystems beyond benefits for humans, the vital link to the environment remains an essential characteristic (Manguiat, p. 3).
Implications for Future Trends
Although the Global Report provided further specifications of the principle, it is still criticised as incomplete (Wright, p. 9). However, it contains a solid basis for a common interpretation, providing law practice with useful tools. The constitutional or legal recognition of fundamental rights such as access to information and justice is implemented in various UN countries. Unfortunately, not all of the member states promote a healthy environment and even if constitutional or legal framings exist on the domestic level, those too often lack in terms of access to high quality and comprehensive information (Raine et al., p. 120). The implementation of robust domestic regulations by the regional parliaments will be necessary to meet the ambitious global commitments (Manguiat, p. 2). For this reason, the report can only provide guidelines and support sustainable development. Because of the necessity of continuous affords, capitalising on linkages with the Sustainable Development Goals (SDGs), engaging diverse actors and conducting a regular assessment of the Environmental Rule of Law will be essential for further progress (Global Report, p. 225).
Global Challenges and Strategies to Improving the Status Quo
This section identifies the most significant issues concerning the Environmental Rule of Law and proposes solutions that could improve sustainable governance to overcome current challenges.
People’s Republic of China
The sustainable development of regulatory compliance in China is slightly different from policies and legal frameworks across many Western countries (Yee et al., p. 95). Although the rule of law principle has been recognised by the political leadership as an increasingly important element to improve the communist legal system, the fact that one of the fundamental pillars of Western legal orders was only established in 1999 with the amendment of the Chinese constitution illustrates the extent of differing legal traditions (He Tian et al., p. vi). Compliance practices in China are likely to be influenced by negative expectations for breaches and potential punishment (Yee et al., p. 108). The right to access information for legal entities in order to have a better and clearer understanding of the specific requirements to fulfil their environmental compliance obligations is not comprehensively available causing still in too many cases fear, uncertainty and doubt (Marquis et al., p. 41).
The provision of distinct guidance by official institutions for individuals and companies could reduce the risks for environmental damages and avoid subsequent measures because the Environmental Rule of Law can only be valuable to the extent it is known and appreciated: It needs to be “recognised and accepted” (Searle, p. 73). Therefore, some scholars promote the steady reform process in China, which was initially motivated by bureaucracy reduction and enhancing the efficiency of governmental bodies, but currently also includes the transformation of administrative structures as well as transparency in legislative proceedings (He Tian et al., p. 38). Despite the reform progress, access to environmental information and effective prosecution rights remains deficient. Following the approach to combine sanctions with bonuses for cooperative minor violators could increase effective environmental protection and build trust (Potoski et al., p. 64).
Republic of India
India has strengthened several core elements of the Environmental Rule of Law in recent years but is still developing legal strategies to reduce environmental risks. Because citizens are often exposed to the negative health effects of environmental pollution, the issue of sustainable governance is of particular importance across the subcontinent (Parikh, p. 193). The judicative decision making and litigation practice in courts of the northern regions differs from those of the South, since environmental demands are tougher in the highly populated area in and around Uttar Pradesh (Gill et al., p. 230). International Environmental Law is directly applied in India by the Supreme Court, leading the way for regional courts adapting increasingly central principles such as sustainable development, polluter pays and precaution (Rajamani et al., p. 1081). However, the indirect application of international environmental law remains a more common practice (Rajmani et al., p. 1082). National norms are regularly interpreted in the light of executive actions, implications for affected parties and international provisions.
The legislative fragmentation and poor implementation of Indian environmental law is a major challenge to the reinforcement of the Environmental Rule of Law in India (Mehta, p. 111). Enforcement of international environmental law in India could be enhanced through deeper legal reasoning and the integration of common principles, creating clearer scope for legal subjects to deal with them in an understandable and coherent manner (Rajmani et al., p. 1083). Judicial dialogues, financial support by the Asian Development Bank and judicial training, coordinated by the United Nations Development Programme for Asia and the Pacific could contribute to further improving climate change laws and adjudications (Raine et al., p. 126). Increased cross-border cooperation on better implementation of environmental law between India and the EU, two of the most populous democratic regions in the world, could benefit both and create positive synergy effects (Buraga, p. 615).
Association of Southeast Asian Nations
In recent years, efforts for environmental protection in the ASEAN region gained momentum since the countries in Southeast Asia are in many cases directly affected by the risks of climate change and often remarkably vulnerable due to their geographic location and particularities. The ASEAN Intergovernmental Commission on Human Rights is promoting for instance the efforts on the ground, pushing forward for regional projects as well as supporting environmental impact assessment including a rights-based approach (Raine et al., p. 121). Stakeholders like country representatives, civil society organisations and academic scholars collaborate on improving the set of national rules in order to advance environmental rights. In addition, ASEAN increasingly tackles environmental challenges like the management of packaging chains together by harmonising design, labelling, recovery and recycling standards (Raine et al. p. 123). The UN Environment Programme is often closely involved by organising consultations and conferences. Furthermore, Southeast Asia is strengthening its efforts against threats to biodiversity like illegal trafficking of wildlife.
Although the environmental protection standard within the European Union is considered as one of the highest across jurisdictions around the world (Cifuentes-Faura, pp. 1333-1340), concerns about the level of good governance in some Member States became more urgent in recent years. The accusations against Hungary and Poland (Gora et al., p. 346) undermining the rule of law led to the ‘Conditionality Regulation’ that created a new tool for EU governance. It increased the pressure on local governments despite the weakening amendments adopted during the legislative process (Barraggia et al., pp. 131-156), while not addressing explicitly the environmental side of the rule of law. More dialogues between regional judges about the Environmental Rule of Law (Bogojević, p. 29) could strengthen national court opinions (Craig, p. 263), but would not close the gap between the ambitious goals and the effective implementation on the ground. Case studies demonstrate that the formal implementation of conservation laws still needs to be improved in terms of enforcement and compliance (Mateo-Tomas et al., p. 15).
United States of America
In general, the USA has high level environmental protection laws with continuously advanced emission reduction measures (Jenks et al., p. 1). However, some progressive scholars describe the current state and upcoming developments in North America as uncertain and unpredictable, since justiciability remains insufficient (Affolder, p. 1085). The compliance tradition of the private sector is an important factor for the Environmental Rule of Law in the United States. Private companies increasingly follow the necessity of environmental risk management and integrate sustainable intelligence. The ambitions of private companies will support the Environmental Rule of Law also because some of the largest investment funds intensify pressure on CEOs to lead their companies environmentally, socially and in terms of corporate governance. Those developments within the private sector benefit the Environmental Rule of Law as a principle of public international law.
Although the Environmental Rule of Law principle is often criticised for an unclear definition (Dunn et al. , p. 295), the UNEP Global Report provides solid guidance for law practice. In the future, the inclusion of the SDGs and regular assessments will be crucial to implement fair governance. Today, the Environmental Rule of Law faces a variety of challenges due to differing local conditions. In the EU, an intensified judicial dialogue within academic environmental law practices could strengthen national court opinions, while private compliance traditions increasingly protect the environment in the US. The strengthening of several core elements of the Environmental Rule of Law in India should be recognised. A deeper conversation between law practitioners could enhance coherence and reduce legal fragmentation in India. The sustainable development of regulatory compliance in China differs from policies and legal frameworks across many Western countries. Improving access to environmental information and effective prosecution rights could increase nature protection in China and build trust. ASEANs initiatives for a rights-based environmental impact assessment, regional approaches and the cooperation with the UNEP through consultations and conferences have to be appreciated because those elements are enhancing the Environmental Rule of Law in Southeast Asia. Above all, a deeper engagement of all relevant stakeholders is necessary. We need an intensified dialogue, more exchange of knowledge and frequent assessments across all regions to extract the very best practices and optimise local impacts.