Measuring the Effectivity of Environmental Law

Front matter

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Contents

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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 UNEP®, IUCN‘, ECOWAS’, OIF’ and CIDCE?.

Following this, IFDD released the following publication: Les indicateurs juridiques. Outils dévaluation de leffectivité du droit de lenvironnement (Legal Indicators. Tools for assessing the effectivity of environmental law),'° 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.

5 United Nations Environment Programme.

6 International Union for Conservation of Nature.

7 Economic Community of West African States.

8 International Organisation of La Francophonie.

9 International Centre for Comparative Environmental Law.

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

14 Foreword

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.

Michel Prieur Christophe Bastin Creator of the legal method Creator of the scientific method Professor Emeritus at the University of Limoges | | Engineer ae Scientific Director of CRIDEAU Founding President of the Société Ingénierie et Honorary Dean of the Faculty of Law and Conseil de Nouvelle Aquitaine

Economic Sciences of Limoges President of the International Centre for Comparative Environmental Law

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 indicators!! used to determine the feasibility of law in the assessment of the Sustainable Development Goals and environmental preservation. À 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

11 Eric Angel and others, “An indicator framework to support comprehensive approaches to sustainable fisheries management, Ecology and Society, Vol. 24, No. 4 (2019).

16 Preface 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 policymaking”.

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.

12 Stephen Posnera and Christopher Cvitanovic, “Evaluating the impacts of boundaryspanning activities at the interface of environmental science and policy: A review of progress and future research needs” Environmental Science and Policy, No. 92 (2019), pp. 141-151.

Preface 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

The United Nations General Assembly resolution of 25 September 2015 on the Sustainable Development Goals (SDGs)" revealed an apparent willingness among States to better assess the progress of sustainable development. This will lead to greater awareness of the value of environmental law, provided that legal indicators to assess the SDGs are introduced.

. This publication aims to demonstrate to both States and civil society that legal indicators can be used as a new tool to evaluate environmental policies. To date there has been no scientific work carried out anywhere in the world that focuses on the creation and use of such indicators to assess the effectivity of environmental law.

The function of legal indicators is to show whether or not environmental law is being applied and why it is misapplied. This will allow the underlying performance and progress of a country to be analyzed. Unlike existing indicators, the goal is not to compare States in a ranking. The aim is to enable urgent necessary legal reforms to be easily identified in order to improve the effectivity of environmental law.

. As environmental law is both national and transnational, legal indicators are also approached from both of these perspectives, acknowledging that concepts, processes and methods of interpretation may differ in each case when assessing effectivity.

. The purpose of this publication is to provide empirical guidance to stakeholders by proposing a set of model legal indicators that can be used in both international and comparative law.

. At present, official assessments of environmental policies, in the form of reports and studies on the state of the environment, do not report on the existence nor effectivity of environmental legislation. Whether these assessments are national, regional or global, only scientific, economic and social indicators can be found. There is no mention of legal indicators for the simple reason that they do not yet exist'*. The fact that the law is completely missing from

“Transforming our world: the 2030 Agenda for Sustainable Development,’ United Nations General Assembly, Resolution 70/1, 25 September 2015 (A/RES/70/1).

In the lists of environmental and sustainable development indicators drawn up by the United Nations, the European Environment Agency, the European Union and individual States, there are no qualitative legal indicators.

assessments of the state of the environment means that policy makers and public opinion tend to ignore, underestimate or deny the weight of the law and its usefulness. In reality, due to this lack of data regarding which legislation is applicable and which is actually applied, decision-makers are forced to act almost blindly.

6. Therefore the creation of scientifically based legal indicators for the environment will make it possible to identify and measure the effective application of environmental law. It is clear that legal indicators do not constitute a miracle solution to fill the gaps in the application of environmental law, which are common in all countries to varying extents. Nevertheless they should be seen as a new Way to:

- Clarify and raise awareness of the position and role of the law in environmental policies;

- Demonstrate the usefulness of environmental law when it is challenged through simplification or derogation;

- Draw the attention of elected officials and the general public to gaps and regressions in environmental law;

- Enable both the public and officials charged with applying and monitoring the law to be better informed about the role that environmental law can play in the success or failure of environmental policies;

- Provide the public with a clear idea of what the effective application of existing environmental law consists of;

- Provide policy makers, parliaments and governments with assessment criteria for the effective application of international agreements and national laws on the environment with a view to preparing reforms;

- Enable the outcomes of legal indicators to be aggregated with scientific indicators at a later stage in order to assess effectiveness of environmental policies, that is, the balance between the objectives pursued and the results achieved.

The benefits derived from the creation of legal indicators measuring the effectivity of environmental law are even greater when taking into account the considerable cost of non-compliance with existing laws. In the European Union this cost is estimated to be at around a staggering €55 billion per year.

15 According to the report by the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), Challenges in the Practical Implementation of European Union Environmental Law and How IMPEL Could Help Overcome Them, 23 March 2015, p. 11.

In his Ph.D. thesis, Julien Bétaille’® identified 127 theoretical legal indicators, which should be tested and validated in order to be given a value at a later stage. Similar questions arise at each stage of evaluation of the implementation processes of legal norms, for both international and domestic law. These stages are the legal components of effectivity represented by legal indicators related to the following observations:

— Existence of the rule;

- Validity of the rule;

- Entry into force of the rule;

- Justiciability of the rule;

— Awareness of the rule;

— Substance of the rule;

— Progress or regression of the rule; - Clarity of the rule;

— Administrative review of the rule; — Judicial review of the rule;

- Sanctioning of the rule;

- Application of sanctions.

In support of our proposal to create legal indicators, we have carried out a systematic review of existing environmental indicators, examining the role of environmental law in each case. These indicators were created by international organisations, countries, universities, foundations and NGOs. We have learned the following:

- Environmental assessment is equivalent to the search for the Holy Grail: it is a never-ending and frustrating pursuit.

— Jurists who have studied the effectiveness of environmental law have never dared to seriously consider actually measuring the conditions of application of the law.

- Environmental texts refer to effectiveness, efficiency and efficacy often interchangeably. Confusion is often worsened by inconsistency in translations”. In this publication we deliberately use the term “effectivity”

Julien Bétaille, Les conditions juridiques de leffectivité de la norme en droit public interne: illustrations en droit de l'urbanisme et de l'environnement, thesis supervised by Michel Prieur, University of Limoges, 2012.

‘The terms effectiveness and efficiency are false friends in French, therefore while effectiveness should be translated as efficacité it is often mistranslated as effectivité. The same is true for efficiency or efficacy which should be translated as effectivité but are often to make a clear distinction in meaning and avoid confusion between other, similar terms".

- Aside from the environment, legal indicators have been used in studies and experiments within two other areas at the United Nations. These are human rights and the rule of law.

- While it is generally agreed that environmental indicators are a necessity, legal indicators have only been regarded as such in exceptional circumstances, for instance at the 1993 Vienna Conference and in the 2012 guide for measuring human rights indicators.

- The term “legal indicator” has actually only been used by three entities: Inter-American Commission on Human Rights, International Labour Organization, The Access Initiative.

— The most relevant assessments successfully incorporate all three complementary levels: international, regional and national.

- Where statistics are available on legal matters, they reflect the number of proceedings, the sanctions imposed and events relating to those proceedings, but never the processes and conditions of application of the existing rules.

- Some institutions seem more open than others to integrate legal data directly into their environmental reviews. These include: the EU Network for the Implementation and Enforcement of Environmental Law (IMPEL); the International Network for Environmental Compliance and Enforcement (INECE); the United Nations Environment Programme (UNEP); the Organisation for Economic Co-operation and Development (OECD); the UN and the 2030 SDGs; the European Union; the Barcelona Convention on the Mediterranean.

- Legal indicators should be treated separately at international and national levels by expanding the practices relating to the reporting system at the international level.

translated as efficacité. The same confusion occurs in translations from French into English.

For the purposes of this study, the notion of effectivity refers to the ability of legal, administrative and jurisdictional processes to achieve the desired result of a legal rule. Effectiveness on the other hand refers directly to the end result, whether that be economic, social or environmental. Efficiency, or sometimes efficacy, have the connotation of getting the best result possible with the resources available.

- Legalindicators of effectivity can only be relevant if they are complemented by institutional, cultural and social data regarding the conduct of actors involved with the application of environmental law.

As a practical example, we put forward a total of 17 model indicators, 8 of which relate to international law and 9 to national law. These indicators have been tested by one individual legal expert in four African countries: Benin, Cameroon, Madagascar and Tunisia. These tests have made it possible to experiment with a mathematical method of ad hoc measurement.

The legal indicators cover international treaty law, international law connected to the 2030 Sustainable Development Goals and national law.

In international law, two global and three regional conventions were selected to examine the effectivity of national implementation.

In national law, we have retained five general principles and two specific fields: protected areas and impact assessments. Legal indicators were also tested in four countries covering three continents. In Europe: France and Portugal; in Africa: Tunisia; in South America: Brazil. This involved an assessment of one protected area and the implementation of SDG 14 regarding oceans.

The legal indicators seek to address six criteria for the implementation of the legal rule, as follows:

- Existential indicators: whether the law exists and what its sources are;

- Indicators of applicability: legality and implementing legislation;

- Institutional indicators: relevant authorities, environmental control bodies and financial resources;

- Substantive indicators concerning the content of the law applied;

- Procedural indicators and indicators of citizen’s and jurisdictional control enabling the exercise of rights;

- Non-legal indicators that affect, to some extent, the effective application of the law.

In each case, an assessment of effectivity is carried out. There is a formal assessment of the legal text, as well as an evaluation of the practical application, or material assessment, of the implementation process. There is no evaluation of the outcome, that is to say there is no monitoring of the causal link between the legal text and the level of pollution observed. This would require a different, complementary and multidisciplinary study. The evaluation of outcomes is a study of effectiveness, not effectivity. This could take place at a later stage with help from mathematicians and statisticians.

11. The operational set up of national legal indicators in a limited area of environmental law could be achieved in around 24 months. It would require a project manager, a leader and a coordinator; a team of 5 to 10 legal researchers, depending on the number of areas studied; and 2 experts, a mathematician and a statistician, to decide on the methodology to be used to measure the data that will produce the legal indicators. The method for measuring legal indicators should be finalized with the support of mathematicians and statisticians who have experience working with environmental or sustainable development indicators.