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The document — which assessed national laws, regulations, and policies around the world — found that a lack of political will, underfunded agencies, unfair judicial systems and a poor implementation of the law has in fact hindered efforts to address some of the biggest challenges of our time, such as climate change and the loss of biodiversity.
To counter this, the report emphasises the need to strengthen the environmental rule of law through a regular global assessment to track progress or potential backsliding.
“Much more needs to be done to ensure a robust and resilient human environment for present and future generations, and it is not clear that we are up to the task,”
Edith Brown Weiss
“What we have seen (in the last decades) is a growth of laws and institutions, but a lot of that progress is stalled,” says Carl Bruch, a law researcher at the Environmental Law Institute in Washington, D.C., and co-author of the report.
In fact, Bruch says, the field has experienced a kind of hiatus for at least 26 years.
Following the Earth Summit held in Rio de Janeiro, Brazil, in 1992, hundreds of nations witnessed an explosion of environmental laws, according to the report. They incorporated environmental protections into their constitutions and created environment ministries. As of 2017, about 90 per cent of all nations had at least basic laws dedicated to protecting the environment to some extent.
But this has been undermined by ineffective and erratic enforcement. Most countries don’t feel the need to implement these laws, and that isn’t limited to the developing world, explains Bruch: “There are the laws that you have to follow and the laws that you may follow if you want to –– in many countries, environmental laws fall into the latter category”.
Nevertheless, there have been cases of success. Perhaps no other country illustrates this more dramatically than Costa Rica, which is heavily dependent on natural resources in a region that has often been ravaged by political strife. After decades of deforestation, the government started implementing strong environmental controls in 1998 and invested millions of dollars to protect biodiversity. Now, Costa Rica has doubled its forest cover since the mid-1980s and is rapidly moving toward achieving carbon neutrality (net zero carbon emissions) by 2021.
According to a study cited in the report, Costa Rica’s “dramatic progress” serves as an example of how years of implementing strong environmental controls give rise to political consensus which, alongside a deep respect for courts and environmental institutions, leads to the emergence and maintenance of environmental rule of law.
Coordinated by the United Nations Environment Program (UNEP) and published on January 24, the report also highlights a worrying backlash seen in the killing of activists who defend environmental law and as governments create new rules to control civil society.
From 2002 to 2017, there was a fourfold increase in the number of environmental defenders murdered, according to the report. Many of them were killed in remote forests of developing countries –– mainly Latin America and the Philippines –– after protesting against extractive industries, hydroelectric dams or agribusinesses.
Their deaths, most of which were never prosecuted, signal bad news for the rule of environmental law. “If you have trouble protecting people’s lives,” says Bruch, “it seems unlikely that you’re going to have enforcement of, say, water permits.”Victoria Tauli-Corpuz, the special rapporteur on the rights of indigenous peoples for the United Nations, agrees. Since taking her post in 2014, she has yet to find good examples of laws specifically designed to protect environmental rights defenders. “I haven’t seen any country doing it the right way,” says Tauli-Corpuz, who did not participate in the recent report. “It is very unfortunate.”
The report’s findings led Bruch and his colleagues to call on countries to implement a self-evaluation on the status of environmental rule of law, to help keep their actions in check. Such an assessment would use different indicators, including whether countries explicitly recognise the right to a healthy environment in their constitutions, the level of public participation in developing environmental laws and regulations, or the number of violations like wildlife trafficking and illegal pollution.
That would go some way towards progress, but for such evaluations to be accurate it is essential to make them transparent, says Edith Brown Weiss, a lawyer and expert on environmental law at Georgetown University in Washington, D.C., who is also unconnected to the report. “Much more needs to be done to ensure a robust and resilient human environment for present and future generations, and it is not clear that we are up to the task,” she says.