'Twenty years on from the Rio Earth summit' : The environmental law future we need. Ben Boer

Transcription

1 'Twenty years on from the Rio Earth summit' : The environmental law future we need Ben Boer Professor, Research Institute of Environmental Law, Wuhan University and Emeritus Professor, University of Sydney Deputy Chair, IUCN World Commission on Environmental Law 1 1

2 Outline 1. The 1992 Rio Conference on Environment and Development: the Earth Summit 2. The Consequences of Inaction: 2012 OECD Report 3. The 2012 Rio + 20 Conference on Sustainable Development 4. Rio+20 The future we want 5. The role of environmental law in the 21 st century 6. Constitutionalizing environmental rights 7. Legal Futurism and environmental law 8. An integrated international and national approach to environmental law 9. Australian lawyers and the Asia Pacific Region 10. Conclusions

3 The 1992 Rio Conference on Environment and Development and its influence on environmental law In June 1992 to the world community met in Rio de Janeiro at the United Nations conference on environment and development. Some highly significant agreements were reached: 1. Convention on Biological Diversity 2. Framework Convention on Climate Change, 3. Subsequently, the United Nations Convention to Combat Desertification. 4. Agenda 21: The agenda for environment and development in the 21st century. 5. Also included was the non-legally binding Statement of Principles for the Sustainable Management of Forests, redone in Perhaps the most important in terms of the development of some aspects of environmental law: the Rio Declaration on Environment and Development, 27 concise principles, some of which have become embedded in international treaties and national law around the world. 3

4 The 1992 Rio Conference on Environment and Development and its influence on environmental law Australia has had a close association with the development of these documents and of these principles, in particular principles such as that of sustainable development [some call it a concept] and the precautionary principle. Some of these principles were already embedded in legislation before the first Rio Summit; for example of the 1991 Protection of the Environment Administration Act, which included four principles often identified as principles of sustainable development: the precautionary principle inter-generational equity the conservation of biological diversity and ecological integrity improved valuation, pricing and incentive mechanisms, which include the application of a range for sub-principles. 4

5 Principles of sustainability Incorporation of these principles at national level within the objects of the Environment Protection and Biodiversity Conservation Act : Not only have these principles being embedded in the legislation around the nation, but they also regularly invoked in various legal actions in our courts and tribunals. BUT, do they make a difference to actual environmental conservation? What role do we as environmental lawyers have to play? 5

6 OECD Environmental Outlook to 2050: The Consequences of Inaction Over the last four decades, human endeavour has unleashed unprecedented economic growth in the pursuit of higher living standards. While the world s population has increased by over 3 billion people since 1970, the size of the world economy has more than tripled. While this growth has pulled millions out of poverty, it has been unevenly distributed and incurred significant cost to the environment. Natural assets have been and continue to be depleted, with the services they deliver already compromised by environmental pollution. Providing for a further 2 billion people by 2050 and improving the living standards for all will challenge our ability to manage and restore those natural assets on which all life depends. Failure to do so will have serious consequences, especially for the poor, and ultimately undermine the growth and human development of future generations 6

7 OECD Environmental Outlook to 2050: The Consequences of Inaction The OECD report summarizes some of the key facts and figures from now to 2050 and looks at the consequences of inaction on all major indicators, including socioeconomic developments, energy and land use, climate change, biodiversity, water, and health and the environment. Each of these indicators needs to be understood both by itself as well as how they interact with each other on a holistic basis. The interactions between land use, biodiversity and climate change and water are being increasingly better understood by both scientists and policymakers. The indicators also need to be better understood by environmental and natural resources lawyers. After all, ecology teaches us that all environmental issues are interdependent 7

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9 Rio +20 : United Nations Conference on Sustainable Development, June

10 Rio+ 20 The future we want -Renewing political commitment -Green Economy -Strengthening Institutional framework 10

11 The title of this paper: I see a significant difference between the words "want" and "need". The word "want" connotes a consumerist desire", whereas the word "need" reflects a somewhat more ambitious connotation; in other words, "require" rather than desire. Pacific Islands NGO view: The Future we demand: 11

12 June 2012: Rio+20: The Vision 1. We, the heads of State and Government, having met at Rio de Janeiro, Brazil, from June 2012, resolve to work together for a prosperous, secure and sustainable future for our people and our planet. 2. We reaffirm our determination to free humanity from hunger and want through the eradication of all forms of poverty and strive for societies which are just, equitable and inclusive, for economic stability and growth that benefits all. 3. We are committed to making every effort to accelerate progress in achieving the internationally agreed development goals, including the Millennium Development Goals by 2015, thus improving the lives of the poorest people. 4. We are also committed to enhancing cooperation and addressing the ongoing and emerging issues in ways which will enhance opportunities for all, be centred on human development while preserving and protecting the life support system of our common home, our shared planet. 5. We urge bold and decisive action on the objective and themes for the conference. We renew our commitment to sustainable development and express our determination to pursue the green economy in the context of sustainable development and poverty eradication. We further affirm our resolve to strengthen the institutional framework for sustainable development. Taken together our actions should fill the implementation gaps and achieve greater integration among the three pillars of sustainable development the economic, the social and the environmental. 12

13 Rio-20: High level political forum envisaged 84. We decide to establish a universal intergovernmental high level political forum, building on the Commission on Sustainable Development. The high level political forum shall follow up on the implementation of sustainable development and should avoid overlap with existing structures, bodies and entities in a costeffective manner Initial UN Resolution response in 2013: expanded and globally representative UNEP Council 13

14 Rio+20: Institutional strengthening 87. We reaffirm the need to strengthen international environmental governance within the context of the institutional framework for sustainable development, in order to promote a balanced integration of the economic, social and environmental dimensions of sustainable development as well as coordination within the UN system. 88. We are committed to strengthening the role of the United Nations Environment Programme as the leading global environmental authority that sets the global environmental agenda, that promotes the coherent implementation of the environmental dimension of sustainable development within the United Nations system and that serves as an authoritative advocate for the global environment. See UNGA Resolution 2013 and UNEP s Executive Director response 14

15 Rio+20 and the future of environmental law While Rio + 20 did not produce any substantive new legal instruments, what potential exists from the Rio + 20 statement to promote new environmental legal frameworks in the future? Or, should we put it to one side, and 15

16 Globalization of environmental law Since the 1970s, environmental law has become increasingly globalized. With the growth of multilateral environmental agreements over the past three decades has influenced the development of domestic environmental legislation, policy and judicial decision-making around the world. This process of globalization has been traced by a number of writers As Percival argues: The basic notion is that globalization is affecting the field of environmental law in a way that is blurring traditional distinctions between domestic law and international law. 16

17 Environmental law as transformative of other areas of law Argentinian Justice Ricardo Lorenzetti s book Theory of Environmental Law, argues that environmental law should be viewed as transformative of other areas of law because it challenges the traditional paradigms on which these laws are constructed. He uses the metaphor of environmental law hosting a large party and inviting other areas of law property, contracts, and civil procedure to come wearing different attire than what they normally wear because he sees environmental law as being transformative. (from Percival) Thus environmental law is not only being globalized, but it obviously relates to many other areas of law and legal practice, including resources law, climate change law and related taxation and finance regulatory processes. 17

18 The role of environmental law in the 21st century While environmental law is still a comparatively young area of practice and a young academic discipline, environmental lawyers around the world have become increasingly important both in terms of the development of multilateral environmental agreements and their implementation, as well as in other areas of legal practice related to the conservation of the environment, the exploitation of natural resources and the planning and development of the urban and rural landscape. 18

19 The role of environmental law in the 21st century Yet it is also true on present scientific indicators, we are facing a range of environmental cliffs, and we are largely losing the battle of saving the world's natural environments. Over 60% of the global ecosystems, according to United Nations assessments is seriously compromised, the global atmosphere continues to be impacted by overdoses of greenhouse gas emissions, agricultural soils in many regions of the world continue to be degraded by direct human activity as well as by climate change, and the marine environment, constituting 71% of the surface of the earth, suffers from serious pollution as well as from unsustainable fishing, which is often illegal, 19 unreported and unregulated.

20 The role of environmental law in the 21st century Environmental lawyers have the power and the responsibility to assist policy makers and scientists to reverse the current trends. This needs to be done equally at international and national levels. Up to the present, few environmental lawyers, or organisations, have stepped up to the mark. At an international level, environmental law bodies and individuals need to significantly improve their performance. 20

21 Legal futurism and environmental law Rethinking the way we teach, practice and adjudicate in environmental law. Try to sketch future scenarios in order to try to anticipate what legal institutions, legislative and decision making frameworks we need in the future. Example of legal futurism: Prof JB Bruhl, Vanderbilt University Law School : How Will Climate Change Law? An Exercise in Legal Futurism, (Law 2050, A Forum about the Legal Future 21

22 Legal futurism and environmental law: International Further integration of and cooperation between environmental conservation regimes, Examples include: Biodiversity Convention, Ramsar Convention, Convention on Migratory Species Desertification, land degradation, climate change and biodiversity Integrated and multi-level approach to climate change governance (Peel, Godden and Keenan work) 22

23 Legal futurism and environmental law: National/state Consistent application of internationally accepted and emerging principles. Some of these principles are included in the 1992 Rio Declaration on Environment and Development, and several of them are being accepted as part of customary international law. Some of these principles are well embedded in Australian environmental law, while others are not yet well known. The familiar ones are: The precautionary principle The principle of intergenerational equity The principle of biological diversity and ecological integrity Improved valuation, pricing and incentive mechanisms; 23

24 The principle of sustainability For some years, there has been a debate as to whether or not the idea of sustainable development, or as many now put it, sustainability, is a principle of environmental law, or merely a concept. In some ways this is a mere linguistic quibble. It is certainly the case that sustainability, however characterized, is a fundamental aspect of what we now understand is the purpose of environmental law, especially in Australia 24

25 The principle of integration This principle, found for example in s 3A of the federal Environmental Protection and Biodiversity Conservation Act 1999 has been given little airplay in Australian environmental law debate. However, in terms of imagining future environmental regulatory frameworks, it is perhaps more encompassing than a number of the other as a basis for longterm strategic environmental planning and the drafting of integrated environmental and natural resources legislation. It reads: D ecision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations. 25

26 The principle of non-regression: This principle holds that environment law has an immutable core content closely linked to the fundamental human right to life. Environmental law is a set of norms that are interdependent from one another. The concept of standstill protects this complex, fragile and fundamental construct. Beginning to be used in South American legal context 26

27 Incorporating the right to clean and healthy environment in national constitutions. Over 60 countries have introduced some form of environmental right into their constitutions over the past few decades. Examples include constitutions from countries as diverse as Afghanistan, Philippines, Costa Rica, France, and South Africa. In Ecuador and Bolivia, Mother Nature is also recognised Courts in several of these countries have used this right in significant cases 27

28 Rights of Nature Articles in Ecuador s Constitution Title II Fundamental Rights Chapter 1 Entitlement, Application and Interpretation Principles of the Fundamental Rights Art.10 Rights Entitlement.- People have the fundamental rights guaranteed in this Constitution and in the international human rights instruments. Nature is subject to those rights given by this Constitution and Law. Chapter 7th: Rights for Nature Art. 71. Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, community or nationality, will be able to demand the recognitions of rights for nature in front of public authorities. The application and interpretation of these rights will follow the related principles established in the Constitution. The State will encourage natural and juridical persons and organisatioins to protect nature; and that it will promote respect towards all the elements that form an ecosystem. 28

29 Recognition of the links between environmental conservation and human rights Increasingly, international organizations, academic scholars and regional courts are beginning to recognize the inherent link between environmental conservation and human rights. They are an aspect of the debate on the achievement of environmental justice, but take the argument much more broadly. These links will become increasingly important in formulating future environmental legislative frameworks at the national level. 29

30 The principle of in dubio pro natura this expresses a specific understanding of the precautionary principle, Applying the principle means giving the benefit of the doubt to the environment: If in doubt, decide for nature This principle has been particularly important in South American countries; for example, the Biological Diversity Act 1998 of Costa Rica. It is beginning to be applied by the courts: example Brazil 30

31 The principle of in dubio pro natura: In respect to environmental litigation, judges should consider applying new legal concepts like shifting or reversing the burden of proof. This is especially important in dealing with questions of causation, in which the principle in dubio pro natura should be applied in some circumstances. This means that in case of doubt, matters should be resolved in the way most likely to favour the environment. (Justice Antonio Herman Benjamin, Brazil Superior Court of Justice) 31

32 An integrated approach to environmental law and policy population indigenous peoples air quality soil erosion and land degradation cultural, historical and religious aspects water quality human settlements endangered species global commons management of dangerous chemicals protection of ecosystems waste disposal 32

33 A bold and integrated approach to environmental law It is certainly clear that environmental law has made significant advances since the early 1970s at international, regional and national levels. However, on all relevant indicators, in terms of socio-economic developments, energy and land use, climate change, biodiversity, water and health and environment, the state of the environment in all regions has significantly declined. We can take but some small comfort in the fact that, without all of the regulatory initiatives that have been developed over the past few decades, the state of the environment might be considerably worse than it is at present. 33

34 Ethical responsibilities of lawyers What ethical responsibilities that we have as lawyers, in terms of environmental conservation and protection.? Whether we take a strong conservation stance or one that is more directed to assisting development interests to deal with the regulatory complexities of exploitation Australia s natural resources, I suggest that environment decision-making needs to be informed by ethical considerations in relation to the concept of sustainability We need to be aware that in Australia, although we have some of the most it advanced environmental law frameworks, we continue to face some extraordinary environmental challenges, in particular in terms of greenhouse gas emissions, land conservation and soil contamination and conservation of terrestrial and marine environments. 34

35 A new ethics: going beyond the traditional boundaries Currently, judges are limited to operating within the frameworks of their countries constitutions, legislation and case law. Environmental law, however, calls for a new ethic that takes science into account and goes beyond traditional boundaries and local contexts to encompass the needs of all living organisms and the Earth as a whole. Environmental challenges transcend historical and legal contexts and require judges to balance not only the views of the parties in specific disputes, but also the interests of the larger community and future generations. Moreover, judges should reject the notion that economic growth must be attained at the environment s expense. (Justice Antonio Benjamin, Brazil Superior Court of Justice 2012) 35

36 World Commission on Environmental Law (WCEL) The World Commission on Environmental Law of IUCN is in the process of setting up a new strategic vision in the field of environmental law in order to more particularly promote consistent and more effective environmental regulation on a global basis. The World Commission welcomes new members, both younger as well as the more experienced, to join this international group of over 800 lawyers, and encourages national organizations such as NELA and the Law Council of Australia and international organizations such as LAWASIA to work closely with WCEL s Steering Committee on national and regional projects, including capacity building, research and conferences. 36

37 World Commission on Environmental Law 1. Access and Benefit-sharing Specialist Groups 2. Armed Conflict and the Environment 3. Energy Law and Climate Change 4. Enforcement and Compliance 5. Ethics 6. Indigenous Peoples, Customary & Environmental Laws and Human Rights 7. Judiciary 8. Coastal and Coral Reefs 9. Protected Areas Law and Policy Sustainable Use of Soil 10. Water and Wetlands 37 _working/cel_wt_members/

38 Australian lawyers and the Asia Pacific Bodies the National Environmental Law Association could certainly be more actively involved in international, regional Asia Pacific and national endeavours to address environmental issues. A number of the major law firms are taking initiatives to grow their business in the Asian region, and hopefully good sense of our Australian environmental law practitioners will guide the policy and future environmental regulation of the many developing countries in our region. 38

39 Much more work needs to be done in Asia and the Pacific in relation to all aspects of the development of environmental law, and in particular on climate change (to the extent that law can assist) 39

40 Mangrove planting: more effective than climate change law in Kiribati? 40

41 Should the climate change law regime or human rights law regime to address deprivation of land, shelter, food sources and livelihood? Or a combination of both? 41

42 Conclusions Has Rio+ 20 Conference and the Future we want an adequate basis for a new and bolder conception of environmental law at international and national level? Unless we take bold steps in the development of environmental law nationally, regionally and internationally, we cannot we say that environmental law has any real hope of addressing our global and national environmental crises As environmental lawyers, it is up to us to provide 42 that leadership