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Environmental Rule of Law FIRST GLOBAL REPORT

The first global assessment of environmental rule of law finds that a dramatic 38-fold growth in environmental laws and agencies, plus massive investment in environmental agreements by donors, has not led to an equally pronounced improvement in the enforcement of those laws. It still comes down to political will.

UN Environment's First Environmental Rule of Law Report meets five objectives:

  1. Explore the meaning and importance of environmental rule of law.
  2. Highlight trends in environmental rule of law.
  3. Illustrate specific approaches that have strengthened environmental rule of law.
  4. Provide a benchmark against which to assess future developments.
  5. Identify measures that countries can take to further strengthen environmental rule of law.

Introduction to Environmental Rule of Law

About Environmental Rule of Law

Environmental rule of law integrates environmental needs with the essential elements of the rule of law, and provides the basis for improving environmental governance.

Environmental rule of law provides a foundation for environmental rights and obligations to be exercised.

Without environmental rule of law and the enforcement of legal rights and obligations, environmental governance may be discretionary, subjective, and unpredictable.

Environmental rule of law supports sustainable economic and social development, protects public health, peace and security, enhances social cohesion, protects fundamental human rights and increases trust in the government and solidifying its legitimacy.

If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced.

Countries with Framework Environmental Laws (1972, 1992, 2017)

Whilst environmental laws have greatly increased, too often, implementation and enforcement of environmental laws and regulations falls far short of what is required to address environmental challenges.

While many countries are endeavoring to strengthen implementation of environmental law, a backlash has also occurred as environmental defenders are being killed and harassed in greater numbers, and funding for civil society restricted. Between 2002 and 2013, 908 people were killed in 35 countries defending the environment and land, and the pace of killing is increasing. In 2017 197 environmental defenders were murdered.

Countries with Legal Restrictions on Foreign Funding and Activities of Nongovernmental Organizations (2016)

To ensure that environmental law is effective in providing an enabling environment for sustainable development, environmental rule of law needs to be nurtured in a manner that builds strong institutions that engage the public, ensures access to information and justice, protects human rights, and advances true accountability for all environmental actors and decision makers.

These priority issues are: Institutions, Civic Engagement, Environmental Rights and Justice.

Institutions

Framework environmental laws are being implemented by hundreds of agencies and ministries worldwide. Institutions translate these laws, directives, and decisions from the legislature, executive branch, and judiciary into action.

Countries with Environmental Ministries, Agencies, and Other Bodies (2017)

While environmental legislation has proliferated at the national level, institutions in many instances are still struggling to implement environmental law effectively, efficiently, and uniformly.

Often, these laws and institutions were modeled on those of other countries, and they have not been adapted to reflect local culture, practices, and resources, or fully fleshed out to provide sufficient direction, authority, and mechanisms for implementation.

Without improved institutions, by 2030 the proportion of the world’s poor living in resource-rich nations is expected to rise from 20 percent to 50 percent.

With the proper mix of capacity, accountability, resources, integrity, and leadership, environmental institutions are poised to greatly narrow the implementation gap in the environmental rule of law.

The seven key elements in building more effective environmental institutions are:

  1. Clear and appropriate mandates
  2. Coordination across sectors and institutions
  3. Capacity of personnel and institutions
  4. Collection, Use and Dissemination of Reliable Data
  5. Independent Audit and Review Mechanisms
  6. Fair and Consistent Enforcement of Law
  7. Strong Leadership and Management Skills

Civic Engagement

Civic engagement is a dynamic process in which information is shared between government and the public as part of inclusive, consultative, and accountable decision making.

The three pillars of civic engagement in environmental decision making are:

  1. Broad access to information concerning the environment that is held by public authorities.
  2. Realistic and meaningful opportunities to participate in decision-making processes related to the environment- public participation.
  3. Effective access to judicial and administrative proceedings - access to justice (discussed in a later chapter).

The effective engagement of civil society results in more informed decision making by government, more responsible environmental actions by companies, more assistance in environmental management by the public, and more effective environmental law.

Countries with Laws Protecting Access to Information (2017)

Key elements of access to information

Constitutional and Statutory Guarantees of Public Participation (2017)

Key elements of public participation

While most countries have committed through treaties, constitutions, or laws to advancing the three pillars of civic engagement much remains to be done to fully implement these provisions, especially with respect to more substantial forms of civic engagement.

Only a minority of countries effectively follow access to information and public participation procedures. Only 33 percent of countries consistently make their environmental impact assessments available.

LEFT: Countries Disclosing Contracts Related to Oil, Gas, and Mining (2016). RIGHT: Countries with Pollutant Release and Transfer Registers (2017)
Public Participation Guarantees by Sector (Environmental Democracy Index)

States need to:

  • Adopt the necessary implementing regulations, procedures, and policies to guide agency officials- so that their already taken steps to require access to information and public participation take full effect.
  • Foster a culture of civic engagement in which officials understand the value of engaging civil society resulting in dedicated professional staff to engage civil society.
  • Build the capacity of the public to engage thoughtfully and meaningfully with government and project proponents.

Environmental Rights

Rights and environmental rule of law are interdependent: neither can exist without the other. Just as fundamental rights cannot be enjoyed without a healthy environment, sound environmental rule of law cannot exist without the establishment of and respect for rights.

Since the 1970s, environment-related rights have grown more rapidly than any other human right. Increasingly, countries recognize that environmental rule of law relies both on traditional environmental laws and on protection of environment-related rights using a rights-based approach.

Taking a rights-based approach to improving environmental rule of law provides agencies the authority to act, people the ability to seek justice, and companies the obligations to act sustainably.

Linking environmental harms to constitutional and human rights also heightens the profile of environmental issues by connecting the importance of the environment to human well-being.

The right to a clean, safe and healthy environment is composed of substantive and procedural rights. One researcher found that after adopting a constitutional right to a healthy environment, 78 of 95 nations strengthened their environmental laws.

Substantive rights related to the environment

Procedural rights related to the environment

Right to Nondiscrimination and Rights of Marginalized Populations

These rights help protect women and children, who can be particularly vulnerable to environmental harms, and can give legal recourse to disadvantaged populations who may be subject to disproportionate pollution and resource extraction.

The protections afforded by constitutional and human rights law are critical to indigenous peoples and persons, who are often closely tied economically and culturally to the environment and natural resources and who are often disenfranchised from modern political and legal systems.

Environmental Defenders

Environmental defenders are individuals and groups who, in their personal or professional capacity and in a peaceful manner, strive to protect and promote human rights relating to the environment, including water, air, land, flora and fauna.

Environmental defenders appear in many forms including: community activists, homemakers, forest rangers, government inspectors and professionals working within corporations to enforce environmental norms.

Because of their environmental and social advocacy, they are targeted. Environmental defenders have been subject to increasing threats and physical violence.

Countries Where Environmental Defenders Have Been Murdered (2002-2015)

A rights-based approach can strengthen environmental rule of law by elevating the importance of environmental protections and ensuring that those protections are realized equally and equitably. Rights-based approaches are still nascent in many countries, and the extent and nature of rights-based approaches continue to evolve.

Recommendations for States:

  • Enshrine a right to a healthy environment in their constitutions.
  • Secure nondiscrimination with respect to access to and protection of environment-related rights of disadvantaged groups.
  • Prioritize the protection of environmental defenders.
  • Implement good practices regarding free, prior, and informed consent- which avoids conflict.
  • Publicize the rights available to the public and ensure a robust, free civil society able to help citizens actuate these rights.
  • Create ombudsman and whistle-blower protections.

A fair and transparent justice system that efficiently resolves natural resource disputes and enforces environmental law is a critical element in establishing lasting environmental rule of law.

Path to Effective Environmental Adjudication

Perhaps the most succinct message regarding justice in environmental matters is that the goal is a “just, quick, and cheap resolution of the real issues in the proceedings".

Access to Justice

Courts and tribunals are of little use if they are not readily available to all aggrieved parties. Because parties cannot seek redress and representation unless they know they are entitled to it, it is critical that all citizens know their rights and how to protect them.

There are 4 common barriers to accessibility:

  1. Legal standing: In order to file a case in court, the party must meet the jurisdiction’s requirements of “locus standi” or “standing,” which means having sufficient connection to the dispute to bring or participate in the court case. Many courts and legislatures have established broad standing to facilitate access to courts and tribunals for environmental cases.
  2. Financial barriers: Courts and tribunals can impose high court costs to bring and pursue a case, and attorneys’ and experts’ fees can be prohibitively expensive. Solutions include lowering bonding requirements in public interest cases and encouraging free representation by skilled legal counsel.
  3. Geographic remoteness: Getting to court from remote locations poses a significant hurdle due to the time, cost, and distance involved. To remedy this, some courts hold sessions in remote locations, use technology to allow virtual hearings in lieu of in-person hearings, and collaborate with nearby jurisdictions to provide one judge to serve several jurisdictions.
  4. Lack of specialized knowledge: Environmental matters often involve highly technical issues. Many people, lawyers and communities lack the legal and technical knowledge and skills to effectively bring their cases to court or present them. It is critical that specialized knowledge be made available to all parties in an environmental matter..

Effective Environmental Adjudication

Expansion of Environmental Courts and Tribunals

When courts, tribunals, commissions, or other bodies adjudicate an environmental case, it is critical that:

  1. Proceedings are done by capable and impartial adjudicators: judges should be knowledgeable and competent regarding environmental law.
  2. Proceedings are fair: when citizens perceive officials to be acting fairly, the public is more likely to cooperate and comply with the legal system.
  3. Court procedures are efficient: use innovative procedures to combat backlogs as "justice delayed can be justice denied".
  4. Decisions made are reasoned, documented and publicly available.

Effective Remedies

Courts and tribunals need to be able to order remedies that can effectively address the harm and violation before them and deter future violations.

When adjudicators hear environmental disputes, they need a variety of remedies and tools to use to address the issues at hand. It is necessary to tailor legal remedies to the harm and benefit derived from the harm.

Enforcement Toolkit

Future Directions

Three key opportunities for improving environmental rule of law

Capitalizing on linkages with the Sustainable Development Goals

Environmental Rule of Law and the Sustainable Development Goals

Engaging diverse actors

Diverse Actors and Primary Sectors Necessary for the Environmental Rule of Law

Conducting a regular assessment of the environmental rule of law

Such an assessment is critical for understanding trends, identifying innovations, and sharing learning about which approaches are most effective. It also helps to periodically focus public attention and maintain political will. And analysis of the trends can improve understanding of the dynamics and effectiveness of particular approaches.

You can contact us at paula.waibochi@un.org and niamh.brannigan@un.org

To learn more about environmental rule of law visit www.unenvironment.org

THE END

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