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. This is the environmental rule of law.
Since the Rio Declaration on Environment and Development of 1992, the world has converged on protecting our ecosystems; to illustrate, environmental laws and agencies have expanded 38-fold in the last few decades. However, we are failing to effectively implement and enforce our environmental laws, says the world’s first Environmental Rule of Law report. The environmental standards and governance procedures, that we are obliged to respect and fully comply with, are often undermined.
In July 2019, an all-women panel discussed how judicial actors such as prosecutors can contribute to reducing the gap between the proliferation of environmental laws and their implementation. The panel was part of the UN Environment Programme’s Planet Unplugged Sessions. Moderated by Andrew Raine, Head of the International Environmental Law Unit at UN Environment, the panel was composed of Raquel Dodge, Prosecutor General of the Republic of Brazil; Ivana Farina, Former Attorney General of the State of Goiás in Brazil and current Secretary for Human Rights and Collective Defense, Brazil National Council of Prosecutors; Inger Andersen, Executive Director, UN Environment; and Elizabeth Mrema, Director, Law Division, UN Environment.
Judicial actors (prosecutors, judges, defence attorneys and lawyers) are essential for enforcing environmental laws and tackling ecological crises. They set benchmarks and values and contribute to rectifying environmental mismanagement.
Working in criminal and civil law, through judgments or mediation, in or outside courts, and with governments, businesses and civil society organisations, judicial actors help to strengthen the rule of law that environmental governance is based on.
“We have an obligation to work in defence of the environment.”
Ivana Farina, Secretary for Human Rights of the Prosecutors National Council of Brazil.
The panellists all agreed that many of the lawyers and judges currently practicing today did not have the opportunity or possibility to study or train in environmental law—in most cases it simply did not exist as an academic discipline. Similarly, customs and other officials may not be familiar with the large, complex, changing and sometimes confusing world of environmental treaties. Lawyers and judges alongside custom officials and police (enforcement officers) need to be informed, trained and kept updated on the principles and trends of environmental rule of law, as well as on implementation skills and tactics useful to their work. Only then can they contribute effectively to enforcing environmental laws nationally and locally.
It is for this very reason that the Global Institute of Prosecutors for the Environment and the Global Judicial Institute on the Environment were created. As Dodge and Farina explained, both of these initiatives support their respective target audience by equipping them with the resources, skills, knowledge and networks to overcome environmental law enforcement barriers and to share lessons and experiences with counterparts in other parts of the world.
Empowering judicial actors towards effective enforcement is an important facet of UN Environment’s ongoing work. Through engagement with training institutes and strengthening of enforcement institutions such as police academies, we can make sure that capacity-building programmes on environmental law are institutionalized and relevant, rather than “flying-in, flying-out awareness programmes,” says Mrema.
“Sometimes the law is ahead of its citizens and sometimes citizens are ahead of the state of law. Law is not static. Law moves and evolves.”
Inger Andersen, Executive Director, UN Environment Programme.
Several elements of environmental rule of law are widely known and practiced—foundational principles, such as the polluter-pays and precautionary principles, are globally accepted and built-into national law. However, according to Andersen, we need to consider and feature more advanced principles in country policy and laws, if our governance is to suit the current environmental issues we face. Such principles include the principle of non-regression—or the idea that norms adopted by States cannot be altered to create reduced standards for environmental protection—the principle of rights of nature, and the principle of human rights to a clean and healthy environment. These concepts are not completely novel nor are they left-field—they are and have been the subject of growing normative consensus. Illustratively, mountains and rivers have been recognized as rights-bearing entities, the Stockholm Declaration of 1972 recognizes the link between human rights, dignity and the environment, and today over 155 countries recognize the right to a healthy environment in their constitution. Meanwhile, at least one multilateral treaty contains text on the principle of non-regression. Essentially, judicial actors should not shy away from revolutionary and innovative ideas in their work.
The universal recognition of the right to a clean and healthy environment is yet to be agreed. “This is our long-term goal.”
Elizabeth Mrema, Director, Law Division, UN Environment Programme
Environmental law does not need to be conservative nor lag behind the reality it aims to govern. Environmental law has, is and can progress effectively. For the panellists, what we need to focus on is building the skills of judicial actors such as prosecutors to enforce these laws where they exist. Through sustainable training initiatives and innovative principles we can build and support judicial actors with the best information, knowledge and resources to dynamically progress environmental rule of law.