CAUSES OF
ENVIRONMENTAL LAW FAILURES
During the three decades since the emergence of
ecological degradation as an issue of great global concern, environmental law
has been the primary mechanism used to promote natural resources conservation,
pollution control, and other forms of environmental protection. The realm
of International Environmental Law has grown to encompass hundreds of
international and regional treaties, thousands of national laws, and countless
administrative regulations promulgated by more than 180 states and multilateral
organizations such as the U.N. agencies and international development
banks.
Every new environmental treaty is preceded by a multitude of
conferences, backdoor negotiations, position papers drafted by government
officials and affected interest groups, intensive lobbying by many governments,
multilateral organizations, environmental NGOs, scientists, trade groups and
industry representatives, and anyone else who has a stake in the outcome.
Every ratified IEL treaty is then followed by conferences of the parties,
reports by the secretariat, intergovernmental panels and advisory committee
meetings, and the same kinds of active lobbying efforts that permeate
international environmental lawmaking processes. By any measure of
diplomatic and legal activity, the field of International Environmental Law has
experienced remarkable growth and high salience since the 1972 Stockholm
Declaration on the Human Environment.
Unfortunately the rapid creation of IEL has not
prevented or significantly slowed the even more rapid acceleration of worldwide
ecological degradation. Many IEL proponents have a myopic perspective
under which they imagine that IEL is succeeding while nature is
dying. We cannot agree that paper accomplishments are worth
extolling when actual conservation achievements are extremely uncommon in the
developing countries.
Despite differences in international and national
lawmaking processes, no clear boundary demarcates where International
Environmental Law leaves off and national law begins. In many instances,
national environmental laws have been enacted for the sole purpose of meeting
obligations imposed by international agreements. Conversely, IEL
agreements have often been modeled after domestic environmental laws of
developed states: One example is the widespread adoption of environmental
impact assessment requirements first imposed by the U.S. National Environmental
Policy Act of 1970 (NEPA). In developing states, many conservation and
sustainable development legal mandates stem from requirements imposed by
foreign aid programs, international development banks, U.N. agencies, or other
multilateral organizations as prerequisites for grants, loans, technology
transfers, or various alternative forms of economic assistance. To
appear responsible members of the "community of nations," developing
nations frequently enact "model" legislation copying environmental
laws drafted by developed states, even if these archetypal laws have little
relevance to the ecological and social circumstances of the Third World states
adopting them. In order to participate in international conferences on
environmental issues that may affect their national interests, developing
states may have to demonstrate the appropriate awareness and concern through
the ratification of environmental treaties and enactment of a paper framework
of domestic environmental laws. Considering these practices and incentives in
the aggregate, we suspect that most developing states would have very little
environmental law of any kind if not for explicit or implicit pressures exerted
by the developed nations and multilateral institutions.
Unfortunately, environmental laws are only hortatory
words unless they are implemented effectively; yet, non-implementation,
non-enforcement, and non-compliance are so common that they must be viewed as
the norm rather than exception in the great majority of nations. The illusion
of international and national environmental law in poor nations is
reinforced by a peculiar mixture of idealism, myopia, and cynicism that induces
states to ratify treaties and enact domestic laws without any expectation of
implementation or compliance. At a high level of generality, there are
three clusters of reasons why conservation laws have seldom been successful in
developing states:
INADEQUATE ADMINISTRATIVE CAPACITIES: Even the
most enthusiastic and naive proponent of IEL should realize that environmental
protection is a complicated and costly undertaking that must be maintained,
revised, and renewed on a continuing basis. The developing nations lack the
requisite scientific knowledge, managerial expertise, trained personnel,
financial resources, institutional frameworks, political commitments, and
popular support necessary to implement effective environmental protection
programs on a wide scale. Legal pronouncements, no matter how sweeping
and unambiguous, cannot serve as substitutes for these indispensable
administrative requirements. Despite various "capacity
building" programs initiated by the governments of developed nations and a
variety of U.N. agencies and multilateral organizations, few if any poor states
have acquired the technical, managerial, and financial capabilities to
implement conservation measures on a broad front. Absent these
capacities, ecological conservation cannot succeed no matter how sincerely the
government and people of a nation may want to preserve their natural heritage.
INADEQUATE POLITICAL COMMITMENTS AND POPULAR
SUPPORT: The overwhelming priority of governments and entrepreneurs in
virtually every poor nation is to increase economic growth and development
opportunities. And the great majority of "common" citizens are
so caught up in day-to-day subsistence activities that their priorities are
also overwhelmingly economic. Given these priorities, it is a very rare
occurrence indeed when any development project is stopped or hindered by
conflicts with international and national environmental laws. In many
countries, most people damaging natural systems or features are not aware of
any applicable conservation laws and would not consider them personally
relevant if they did know the laws. Few if any governments in developing
countries have a systematic plan for monitoring compliance with their
environmental laws or for enforcing the laws in the likely event of
non-compliance. Even where widespread practices are known to be
environmentally destructive and socially disadvantageous for most citizens, as
in the contexts of cyanide and dynamite fishing, slash-and-burn deforestation,
or toxic water pollution, governments in developing states very seldom
interfere with flagrant violations of their environmental laws.
Governments in poor nations have many reasons for ratifying environmental treaties and enacting domestic conservation laws despite their lack of interest in enforcing these laws:
Governments in poor nations have many reasons for ratifying environmental treaties and enacting domestic conservation laws despite their lack of interest in enforcing these laws:
§ Most governments want to be
regarded as responsible members of the "community of nations" and
their ability to influence the choices of other states may turn on achieving
this perception. Participation in environmental lawmaking efforts could
be deemed of significant importance by governments even if the results of
participation, whatever agreements and laws are negotiated, are not considered
especially relevant.
§ For many developing countries,
participation in international environmental proceedings on a relatively equal
footing with more powerful states offers an opportunity to reinforce their
sense of national identity and importance. This participation may also
enable them, often acting in concert with other developing nations, to pursue
specific national interests as they perceive them.
§ Foreign aid from developed nations
and economic or technical assistance from multilateral institutions may often
depend on developing states maintaining the appearance of adequate environmental
protection laws. The World Bank, for example, requires applicants to
demonstrate through a document-submission process that the governments possess
an appropriate legal framework to mandate environmental impact assessments and
mitigate ecological damage from development projects.
§ Developing nations may also need
to ratify IEL agreements and enact environmental laws as a precondition for
obtaining trade advantages offered by wealthy countries influenced by
environmental concerns. An example of this inducement is the North American
Free Trade Agreement (NAFTA), in which the primary motivation of all three
nations was to increase trade and economic growth. However,
environmentalists in the U.S. and Canada threatened to derail NAFTA negotiations
unless Mexico upgraded its environmental protection laws. In response,
Mexico did adopt strong pollution control and conservation laws on paper, but
legal implementation has been predictably erratic if not wholly illusory.
§ Adoption of IEL treaties and
national conservation laws may defuse adverse publicity and controversy that
could deter potential investments and tourism in the state. For example,
environmentalists have often publicized the high deforestation rate in the
Malaysian State of Sarawak on Borneo, which conflicts with the Sarawak
government's attempt to attract tourism by emphasizing that it still possesses
among the largest and most pristine rainforest areas in the world.
Whether a government wants favorable treatment from other governments, multilateral
organizations, or private parties, the adoption of paper laws offers a visible
indication that the environmental objectives of the other actors are being
taken seriously.
§ Environmental lawmaking may help
deflect internal political criticisms as well as external pressures from the
international community. Lawmaking without major investments in
implementation and compliance may, from a government's perspective, defuse
media scrutiny and public aspirations for environmental protection in a way that
does not jeopardize economic development. In this sense, the creation of
illusory conservation obligations may function as a high-pressure steam relief
valve on a boiler, mollifying environmentalists without the need to impose
severe regulatory burdens on entrepreneurial activities.
In short, governments may achieve "the best of
both worlds" from a political perspective by enacting strict conservation
laws to placate environmentalists but then not implementing or enforcing those
laws to reduce administrative costs and to accommodate pressures from business
interests. The point to keep in mind is that governments in developing states
may derive a range of benefits from adoption of conservation laws that
have little connection with the ecological and social benefits from genuine
environmental protection. And most other governments almost never make
serious attempts to h these states to their self-assumed legal obligations.
INADEQUATELY DESIGNED LEGAL MANDATES: Most
international environmental laws and national laws in developing states have
been poorly conceived--they are overly general, deliberately ambiguous, often
self- contradictory, excessively lenient, lacking real teeth--but even
thoughtful environmental laws responsive to the specific ecological and social
conditions in each country can seldom serve as the foundation for successful
conservation in most nations. Aspirations for economic growth and
inappropriate, or no-longer- appropriate, resource exploitation traditions are
the main causes of ecological destruction, and effective remedies must function
in these same domains. In other words, effective conservation strategies must
respond directly to the economic circumstances and human motivations underlying
specific environmental hazards. Legal mandates cannot provide
satisfactory replacements for economic and social measures that would address
the root causes of ecological harm.
International Environmental Law is first and foremost international law: Its fundamental unit is the state, not the ecosystem, its fundamental principle is national sovereignty, not the conservation of nature. The inability of states to achieve consensus on anything but a lowest-common-denominator basis, the insistence of most states on retaining unrestricted sovereignty, and the absence of sanctions for non-compliance are familiar problems in all realms of international law including international agreements that ostensibly respond to ecological degradation issues. Most IEL efforts are aimed at consensus-building among governments and international organizations, not among the people who actually own, use, or damage ecological resources. When sovereignty conflicts with environmental protection requirements, sovereignty prevails. There is a striking discontinuity between this legal enterprise, which operates primarily at the international and national levels, and the myriad decentralized activities that threaten diverse natural systems and species in disparate places.
International Environmental Law is first and foremost international law: Its fundamental unit is the state, not the ecosystem, its fundamental principle is national sovereignty, not the conservation of nature. The inability of states to achieve consensus on anything but a lowest-common-denominator basis, the insistence of most states on retaining unrestricted sovereignty, and the absence of sanctions for non-compliance are familiar problems in all realms of international law including international agreements that ostensibly respond to ecological degradation issues. Most IEL efforts are aimed at consensus-building among governments and international organizations, not among the people who actually own, use, or damage ecological resources. When sovereignty conflicts with environmental protection requirements, sovereignty prevails. There is a striking discontinuity between this legal enterprise, which operates primarily at the international and national levels, and the myriad decentralized activities that threaten diverse natural systems and species in disparate places.
No international law principle precludes states from
adopting elaborate obligations without the administrative resources or
political commitments to implement these agreements. Many IEL mandates,
for example, unrealistically require developing countries to implement
comprehensive environmental planning, impact assessment, and resource
management programs despite their lack of adequate expertise, personnel, and
financial support. Moreover, most developing states place higher priorities on
economic growth and public health measures than on preserving ecovitality or biodiversity
and they would not allocate substantial financial resources to conservation
measures even if they had them.
Many national laws are similarly ill-conceived
because they are uncritically copied from environmental statutes of
developed nations or from general framework laws distributed by U.N. agencies
and other multilateral institutions. UNEP, for example, in its ELI/PAC
program sends out teams of legal technicians to help developing states adopt a
wide range of standardized environmental laws. These teams spend two
weeks in Burundi, two weeks in the Maldives, two weeks in Mongolia, and then
they count their success by the number of new statutes formally enacted by
states that now have more environmental laws than lawyers or natural resources managers.
It should be evident that conservation laws which are not carefully adapted to
the distinctive political, social, economic, cultural, and ecological
conditions in each developing nation are likely to prove useless or worse.
Environmental laws are not self-executing and they
cannot function in the absence of effective implementation, which in turn
requires extensive and expensive administrative capacities, detailed regulatory
mandates responsive to particular national circumstances, strong government
commitments in the face of competing economic and social interests, and
influential public constituencies supporting environmental protection.
Because these attributes are very seldom present in developing nations, it
should not be surprising that international and national conservation laws are
failing pervasively relative to the pace and magnitude of global ecological
destruction.
Neither environmental law nor environmental
education has been able to counter the overwhelming priority placed on economic
development in virtually all poor countries. Neither environmental law
nor environmental education can succeed when people lack viable economic
alternatives---poor people will not let their families starve to save trees or
tigers, no matter how much they appreciate nature--and most people in
developing nations want more than minimal subsistence. Environmental law
and education rely mainly on the impact of words, words that are often no more
than idealized exhortations, but conservation-oriented words have seldom been
compelling enough to produce meaningful conservation actions in the developing
countries.