Measuring the Effectivity of Environmental Law

Table Of Contents

• Cover
• Title
• Copyright
• About the authors
• About the book
• This eBook can be cited
• Table of Contents
• Acknowledgments
• Foreword
• Preface
• Abstract
• Introduction
• I. The need for effectivity in environmental law
• A. Effectivity in international and domestic law
• B. Distinction between effectivity and effectiveness
• C. The effectiveness of environmental law according to McGrath
• D. The growing interest in legal effectivity, particularly in environmental law
• E. Effectivity in relation to non-effectivity
• II. Acknowledgment that truly legal indicators do not exist
• A. Indicators that occasionally address the environment
• B. Indicators focusing specifically on the environment
• C. Human rights indicators
• III. Sustainable Development Goal indicators
• A. The gradual increase in indirect legal force of the SDGs
• B. The United Nations SDG indicators
• C. The World Bank SDG indicators
• D. SDG indicators of academic and private origin
• IV. Why create legal indicators for the environment?
• A. Respond to ineffective processes in environmental law
• B. Inform the public about the social value of environmental law
• C. Inform decision-makers
• D. Scientifically measure progress and regressions in environmental law
• V. How to create legal indicators based on criteria of effectivity in environmental law
• A. Similar experiments
• B. Initial selection of the area of law to be evaluated
• C. Families of effectivity criteria in environmental law
• D. Stages leading to the formulation of legal indicators in questionnaires
• E. Examples of model questionnaires
• VI. How to measure and represent legal indicators?
• A. The object of measurement
• B. The method of measurement
• C. The resulting indicators
• D. Statistical monitoring of effectivity progress within the area of measurement
• E. Graphical representation
• Conclusion: Strengths and weaknesses of legal indicators
• 1. Contribution of legal indicators to governance
• 2. The limits of legal indicators
• Bibliography
• Annexes
• Table of Contents
• Series index

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Acknowledgments

This publication has benefited from much advice and valuable contributions from the members of the Normandy Chair for Peace group that focuses on Legal Indicators in the Law of Future Generations. Special thanks go to: Alexandra Aragão (Professor, University of Coimbra, Portugal), Boris Barraud (Research Lecturer, Aix-Marseille University), Julien Bétaille (Associate Professor, Toulouse 1 University), Odeline Billant (Ph.D. student, LEMAR), Marie Bonnin (Researcher, LEMAR), Pierre Brunet (Professor, University of Paris 1), Fernanda Cavendon-Capdeville (Postdoctoral Fellow, Federal University of Santa Catarina, Brazil), Guillaume Chapron (Associate Professor, Department of Ecology, Swedish University of Agricultural Sciences), Leïla Chikhaoui-Mahdaoui (Professor, University of Carthage, Tunisia), Jérôme Fromageau (Associate Researcher, Institute for Political Social Sciences, ISP Paris-Saclay), Émilie Gaillard (Co-Director of the MRSH Risk Centre, University of Caen, MRSH Caen), José Juste Ruiz (Professor, University of Valencia, Spain) and Alfredo Pena-Vega (Research Fellow, Edgar Morin Centre IIAC/EHESS).

This publication was made possible thanks to Pascal Buléon, Director of the Maison de la Recherche en Sciences Humaines (MRSH) in Caen, and Émilie Gaillard, General Coordinator of the Normandy Chair for Peace.

In addition, documentary support was provided by Vanessa René Galvan at the Georgia State University College of Law in Atlanta, USA.

We would also like to thank the partners of the Normandy Chair for Peace: the Normandy Region, the University of Caen and the CNRS, Professor Nicholas A. Robinson, Chairman Emeritus of the Normandy Chair for Peace, as well as Antonio Oposa Jr., Chair Leader of the Normandy Chair for Peace.

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Foreword

In February 2018, the methodological principles for the legal indicators described in this publication received approval during a symposium held in Yaoundé, entitled “Effectiveness and judicial education of environmental law in Francophone Africa”. It was organized by the Institut de la Francophonie pour le développement durable (IFDD, Institute of La Francophonie for Sustainable Development), with the participation of UNEP⁵, IUCN⁶, ECOWAS⁷, OIF⁸ and CIDCE⁹.

Following this, IFDD released the following publication: Les indicateurs juridiques. Outils d’évaluation de l’effectivité du droit de l’environnement (Legal Indicators. Tools for assessing the effectivity of environmental law),¹⁰ which describes best practice in measuring the effectivity of environmental law.

This work aims to shed new light on the implementation and use of legal indicators, following two years of experience and exchange.

Environmental indicators are the subject of numerous publications. Yet these publications contain no mention of legal indicators to measure the processes of application of environmental law, and therefore its effectivity. They merely report on the performance of environmental law within current development models.

But beyond this survey of indicators, what have been their achievements? Which indicators have been used repeatedly? Who are they used by? Is there consensus?

Despite differences in methods, their frequent lack of transparency and disagreements between experts, there is one point of consensus for most environmental indicators. That is the link between what is required from the measurements and what is required by governance, particularly with regards to the Sustainable Development Goals (SDGs) and international environmental conventions.

In face of the global challenge of environmental protection, there is a clear need for clarification and harmonization of legal indicators. Moreover, it appears to be vital in order to meet the governance requirements that this challenge poses to the international community.

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Readers may question the usefulness of legal indicators. The answer can be found in Principle 11 of the 1992 Rio Declaration on Environment and Development, which called on States to “enact effective environmental legislation”.

There are of course a wealth of indicators that measure impacts on the environment. References to the measurement of environmental law in these indicators only mention legal outcomes (number of court rulings, number of offenses, budgets, staffing, etc.).

Measurements of the effectivity of the law are missing. The creation of legal indicators to complement existing environmental, economic and social indicators, is something that is long overdue.

The goal of this publication is to make a real contribution towards meeting the challenges of environmental protection; in particular, achieving the SDGs and ensuring the effective application of international environmental conventions.

We have endeavored to illustrate how legal indicators can be used as innovative tools to better manage reforms and avoid regressions in environmental law, as well as to explain the methodology behind their creation.

We hope to provide readers with a method that is accessible, can be applied easily and that responds to the needs of decision-makers and civil society.

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5United Nations Environment Programme.

6International Union for Conservation of Nature.

7Economic Community of West African States.

8International Organisation of La Francophonie.

9International Centre for Comparative Environmental Law.

10https://moged.ifdd.francophonie.org/index.php/fr/publications/download/14/187/19?method=view

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Preface

Challenges in the creation of legal indicators for the environment

This publication aims to contribute to a cognitive innovation. To bring scientific rationale to legal indicators¹¹ used to determine the feasibility of law in the assessment of the Sustainable Development Goals and environmental preservation. A careful balance is sought between the scope of national and international environmental law, and the extent to which the effective application of the law is identified and measured. This approach therefore serves as a powerful tool that can be used in a variety of contexts, from environmental policy management to global ocean governance.

Generally speaking, legal indicators for the environment can be used to identify and measure the effective application of environmental law, reflecting in a variety of ways the impact that a given human activity can have on the environment. For example, biodiversity conservation is a complex issue, full of uncertainty. This fact, combined with a lack of action from political leaders and budget constraints, means that States and international bodies struggle (perhaps willingly) to enforce environmental policies. This calls for forms of monitoring in the broad sense, with the introduction of assessment tools such as indicators. Although this publication does not offer a ready-made solution, it does constitute a significant scientific contribution to the search for legal tools for environmental rehabilitation.

This publication is important for several reasons. Given the current ecological crisis, there are both political and practical reasons to support legal indicators that are scientifically feasible on a local (domestic law) and global (international law) scale, and that protect the biosphere. The current context of global change and growing environmental uncertainty due to human activity is leaving behind a trail of irreversible ecological disasters. Policy makers are putting enormous pressure on legislators to relax environmental standards, ignoring ecological limits and focusing solely on the cult of economic growth. The goal of legal indicators is to offer to every government, international institution and civil society, a tool for assessing the effectivity of the law. In addition, in attempting ←15 | 16→to outline recommendations for legal indicators, this will push the boundaries of our knowledge and lead to a better appreciation of the real contributions of environmental law, provided that legal measures based on the Sustainable Development Goals (SDGs) are introduced. It must be noted however that sustainable development is a somewhat ambiguous concept. It must be rethought in terms of sustainability, a concept which takes into account both the biosphere, that is, environmental and living conditions, as well as the future, that is, what might happen to future generations.

This publication comes after two decades in which sustainability indicators have multiplied in the scientific community. One example is the Millennium Development Goals (MDGs), which combined different areas of concern into a set of quantitative indicators that measured progress towards global sustainable development. But while it is important to assess the progress of social, economic and ethical indicators for sustainable development, if it is not possible to report on the effectivity of the law, then this assessment is not only insufficient but also politically misleading.

At last, the scientific community and policy makers working towards finding solutions for environmental sustainability are showing a greater interest in knowledge exchange between science and politics. The impact of this may not be seen for some time as causal links are difficult to detect. Conventional ways of assessing the impact of indicators can be insufficient both scientifically, given the complexity of the science involved, and in terms of decision-making, given the complexity of the real world. This work is not directed towards any specific scientific community of legal theorists or practitioners. In fact the reflections and methodology presented here transcend disciplinary boundaries. As a result, this publication facilitates collaboration between researchers, decision-makers and practitioners. This could contribute to a better understanding of how legal indicators are agreed upon and utilized in policymaking¹².

In the future, it will no longer be possible to ignore the absence of the law when evaluating the state of the environment. Policy makers and public opinion will not be able to underestimate nor deny the weight of the law and its usefulness. ←16 | 17→It remains to be seen what impact this publication will have in terms of essential learning and feedback between the different actors involved.

Alfredo Pena-Vega

Research Lecturer

Scientific Director

Global Youth Climate Pact

Institut interdisciplinaire d’anthropologie du contemporain