The United Nations Conference on Environment and Development (UNCED, Rio de Janeiro, 1992) did not invent the term sustainable development, but it was very much the occasion that gave it formal, general acceptance. The term itself was defined in the report of the World Commission on Environment and Development (the Brundtland Report) in 1987 as development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
Sustainable development law can similarly find antecedents prior to Rio, but it was only there that the world community subscribed to its essential principles. It is not just environmental law, but an integrated approach in which environmental protection and its legal instruments are incorporated into the development process. How this is to be done in practice is still being worked out, but several general principles seem well accepted. One is that policies must be designed to meet development needs, especially those of the poor. The sustainable corollary is that the environmental effects of development must be taken into consideration before acting. Another principle, which has been particularly influential since Rio, is that in the absence of scientific certainty, any action that risks serious or irreversible harm should not be undertaken (the precautionary principle). Two further related principles are those of access to information and participation in decisionmaking.
Rio was not a legal conference, but it had a particularly marked effect on law. The Conference adopted the Convention on Biological Diversity, the Rio Declaration on Environment and Development, the Non-binding Forest Principles and the extremely influential Agenda 21. Besides giving some systematic content to sustainable development law, the Rio Declaration and Agenda 21 place law in a central position among the means of achieving the goals of the Conference. Chapter 19 of Agenda 21 is devoted to international law and recognizes first of all the importance of the further development of international law on sustainable development. Chapter 8B states that an effective legal and regulatory framework is essential to the effective integration of the environment and development in national policies.
The outputs of Rio did not end with the Conference. The Convention on Biological Diversity has since come into force (as has the Framework Convention on Climate Change) and is now being incorporated into national legislation. The Forest Principles have continued to be developed and to influence thinking on forestry and forestry law. Agenda 21 continues to guide the further development of sustainable development law, both internationally and nationally.
Ten years after Rio, the World Summit on Sustainable Development (Rio plus 10) provides an appropriate occasion for taking stock of what has been accomplished in the law of sustainable development. This book reports and reflects on the changes that have taken place, on emerging trends and on interesting experiments in the legal frameworks governing agriculture and natural resource management, subjects that are at the centre of the sustainable development agenda. Since it has been a very active decade in the legal world, there is much to report on.
The role of law in development has been perceived differently over time, ranging from a belief that good laws lead directly to development, to great skepticism that law matters at all. Generalizations in this area are dangerous. In the first place there are many different legal systems, some of which accept change more easily than others. Each country has its own traditions regarding administrative law, the use of litigation and the role of the judiciary and other legal institutions. Moreover, the role of law in society varies enormously: in some countries legislation seems generally effective, while in others it appears to have little impact. Other sources of variation are almost infinite.
Nonetheless, as legal professionals working in development worldwide, the authors have come to believe that law is essential to creating suitable enabling environments for government action and private initiative. Good laws and functioning legal institutions contribute to the predictability, security and flexibility needed to foster development. Conversely, poorly designed and implemented laws can inhibit effective action, by distorting incentives and discouraging appropriate interventions by government and civil society. Good law, of course, is only one among a number of elements that need to be in place for meaningful change to occur, but it is an important one - and judging from the amount of new legislation the past decade has produced, law's central importance is widely recognized.
There are often quite specific reasons for a given legal reform, but there are also some overarching factors that have influenced the pace, nature and direction of legal reform more generally over the last ten years. Some of these factors have taken the form of tangible events, others have emerged as shifts in thinking, priorities and strategies. They include greatly expanded environmental awareness at global and national levels; the collapse of communism; the movement towards privatization of many government functions; the acceleration of globalization; the strengthening of regional cooperation in many parts of the world; heightened international appreciation of the importance of good governance; and an increasing emphasis on devolution and decentralization strategies across all sectors of government. These factors, in various combinations, have influenced virtually every one of the areas addressed in this book, resulting in some striking similarities among innovations in very different legal systems.
Environmental awareness. In the wake of the Rio Conference and a host of other international environmental conferences, many developing countries are seeking to design basic legal instruments for environmental protection and the sustainable management of natural resources. Many countries have adopted national framework environmental laws, creating new environmental agencies and establishing environmental impact assessment procedures. Sectoral laws governing the exploitation of natural resources have been or are being revised to reflect the imperatives of sustainable development and the specific national obligations set forth in the Rio agreements, as well as in such international instruments as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Convention on International Trade in Endangered Species of Flora and Fauna, the Montreal Protocol on Substances that Deplete the Ozone Layer and others.
Collapse of communism. With the collapse of communist systems, many countries (including a number of entirely new countries) have been faced with the need to create new legal institutions and bodies of market-friendly, democratic law almost from scratch, without even the benefit - dubious as it may be in some contexts - of the colonial legal traditions from which many new countries in other parts of the world were able to start. These countries have needed to create laws that:
define the universe of property rights in the system;
set a framework for exchanging these rights;
set the rules for the entry and exit of actors into and out of productive activities;
oversee market structure and behaviour to promote competition. (Gray, 1993)
Towards this end, many countries have been engaged in writing everything from constitutions and civil codes to laws on taxation, banking, companies, bankruptcy, competition, commercial transactions, local government, land, housing, elections - in short, the whole panoply of laws perceived as essential for creating a modern national legal framework appropriate for a market economy and for the functioning of democratic institutions.
Privatization. In Central and Eastern Europe and other countries in transition to market economies, privatization is obviously related to the dismantling of socialist governing structures. But it is a worldwide phenomenon. Whether through domestically inspired reform, or under pressure from outside in the form of structural adjustment programmes and the like, countries around the world are facing the need to revise legal structures in a direction that is more favourable to private investment and the disentanglement of government from the market and from the provision of services.
However ambivalent a particular government may feel about it, and however inconsistently it might be applied, the philosophy of privatization has seeped into virtually all sectoral policies, with corresponding adjustments both to general and sector-specific legislation. Thus, in agriculture and natural resource management, there has been increasing legislative attention to issues such as deregulating agricultural cooperatives; introducing cost recovery in irrigation; reducing the role of government in commercial forestry; creating tradeable fishing quotas; facilitating the exchange of private rights in land; and improving the legal environment for private trade.
Globalization. Providing additional impetus to the foregoing trends is the inexorable integration of national economies into the world economy. As a result of this phenomenon, many nations are increasingly looking for domestic legal models with which foreign partners feel comfortable. Sharing of international experience plays a particularly important role in highly specialized, rapidly growing fields such as intellectual property rights, communication and trade, where the meshing of domestic laws with complex international instruments is especially complicated, and where domestic legal experience may be especially absent.
The growth in the number of countries joining the World Trade Organization and therefore bound by its agreements has created a flurry of interest in revising legislation to meet international obligations and to capture the principles of these agreements, such as harmonization, equivalence and non-discrimination. Within the areas covered by this book, the Agreement on the Application of Sanitary and Phytosanitary Measures has had wide-ranging effects on national legal frameworks and policies, due to its identification of the Codex Alimentarius, the Office international des épizooties and the International Plant Protection Convention as the sources of international consensus on food safety, animal and plant health measures. The Agreement on Trade-Related Intellectual Property Rights, which imposes specific obligations on WTO member countries to provide protection for plant varieties and to provide reciprocal protection to one another, is another undeniable step toward globalization.
Regionalization. The dynamics referred to in connection with globalization often apply on a regional basis as well. Countries eager to join the European Union (EU), for example, are faced with the task of conforming laws on a wide range of subjects to EU requirements, touching on virtually all areas of agriculture and natural resources law. MERCOSUR, CARICOM and NAFTA, amongst others, have also influenced the legislation of their members, especially although not exclusively on trade matters. Regional standard-setting organizations have also been busy building on international models while tailoring standards and measures to regional interests, in particular in such fields as plant protection. The creation of new regional economic groupings such as the African Union confirms the expectation that regionalization will continue to grow in importance alongside globalization.
Good governance. The goal of good governance is a theme that has increasingly influenced legal and institutional reforms, even if its realization in practice remains elusive in many parts of the world. Concepts such as participation in decisionmaking, access to information, transparency and accountability, have affected law design in every sector, and have begun to change the way governments do business and interact with civil society on matters ranging from awarding forestry concessions to setting food control standards to monitoring environmental compliance. The Declaration of the World Food Summit: five years later gave special emphasis to the importance of strengthening the rule of law and good governance to solve socio-economic problems and to achieve food security. The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was an important step in capturing an international consensus on these concepts, in the context of environmental governance.
Devolution and decentralization. In the face of globalization and other examples of convergence, there are a number of trends that appear to celebrate the potential of divergence - namely, the growing emphasis on decentralization and devolution of government powers and responsibilities. Legal frameworks are being changed to reflect policies promoting local decisionmaking and community-based initiatives in a wide variety of fields. Decentralization is a strategy that is widely embraced in principle by governments and international agencies, and is one that finds expression in numerous legal instruments. The promotion of community is another theme that figures especially prominently in current thinking about environmental and natural resource management. In forestry, water, fisheries, land use, wildlife and other areas, the emphasis is on moving away from state monopolies, and towards a stronger vesting of management responsibilities and property rights in local governments or communities.
A mixture of forces drives these trends. The reliance on local and community capabilities may be promoted as a pragmatic way of accomplishing more effective management of resources than central governments alone have been able to provide. Devolution is also seen as a better way of meeting the basic needs of resource-dependent populations, and in some contexts, of recognizing indigenous peoples' rights to self-determination. Rio documents, in particular Agenda 21, the Convention on Biological Diversity and the Forest Principles, exhort governments to review legislation and property regimes in order to provide a better legal framework for community management. The challenge is to design legislation that both enables and guides such activities, a task that often requires a significant reorientation of legal texts and institutions.
The amount of legal activity in the last ten years has made it a good period from which to draw some lessons about the process of legal change. Despite the variations in national strategies and legal traditions, it is possible to suggest a framework for analysing existing legal frameworks and assessing possible reforms. Although it should be obvious, it is worth emphasizing that the analysis needs to begin with existing laws, both the letter and application, before countries can turn to considering what to change. Starting from what is already there is important for several reasons. If the current law is good enough, time may be better spent on other matters. Alternatively, if the reasons the current law is not satisfactory are not changed, the new law is unlikely to work any better. After analysis of the current legal framework comes an assessment of the feasibility of changing the existing constraints - along with an identification of the priority order for legal change, followed finally by the choice of legal solutions.
An analysis of the existing written law involves asking some broad questions which are relevant in quite different circumstances. The answers to these questions will provide policymakers with a window onto the strengths, weaknesses, overlaps and gaps in the current legal framework.
- governing access to and management of public goods, such as water and other natural resources;
- addressing the externalities of public and private actions, including environmental, land use and public safety implications;
- regulating the behaviour of government officials, to ensure basic limits on the exercise of discretion, and to support transparency and accountability; and
- ensuring a right of meaningful participation, including access to information.
The substantive content of law is, of course, only part of the story. It is also important to try to assess the actual effect that relevant laws have on the ground: in what ways do they influence the behaviour of individuals and institutions? A law nominally in force may fall short of its intended purpose or have quite unintended secondary effects, for a number of reasons, such as:
lack of political will: The effectiveness of a law is often undercut by the failure of government to devote sufficient resources or energy to its implementation. Many good laws are simply not implemented.
failure to anticipate the modes and costs of effective implementation: Many ambitious laws, internally coherent and technically well-drafted, have been enacted without sufficient prior attention to the costs of implementation. The result is laws that lie unimplemented or under-implemented.
failure to recognize the limitations of legal reform in bringing about social and economic change: There is no magic to legal reform, and to pursue it effectively means being realistic about its potential for effecting real change on the ground. Laws that require sudden changes in deeply ingrained behaviour, or that require dramatic upheavals in institutional set-ups without laying the groundwork for such change, may prove difficult to implement.
lack of understanding or acceptance of the law by regulators and regulated: Government officials may be ignorant about the content and the procedures of a law, with the result that they implement it improperly. Governments also frequently fail to engage civil society in the design of important laws, and to educate people about the contents of a law once it has been passed. As a result, they fail to build up support for the law amongst those stakeholders most directly affected, and many stakeholders may resist implementation of the law, or may remain ignorant of how to comply with the law or to take advantage of opportunities that it offers.
weak judicial institutions: In many countries, the resolution of legal disputes is the responsibility of a court system that is overburdened and under-financed. Alternatives to traditional court systems may be few or non-existent. As a result, even good laws may not be enforced for lack of judicial mechanisms.
The importance of understanding the law in action has methodological implications. It means that a thorough analysis of the legal framework cannot rely entirely on a review of written instruments and cannot be undertaken only by legal experts. Such a review needs to be nested within a multidisciplinary effort to assess the perceptions, activities and interactions of the main stakeholders.
Once the constraining features in the legal framework have been identified, the next step is to analyse how easy or hard it may be to correct those features, or at least to mitigate their impact. It is essential to identify what concrete technical and political steps are required to make the necessary changes, and what obstacles stand in the way. If the problems have arisen from the law in action, how can the defects in implementation be cured?
A related question is how high a priority to assign to any potential legal change. To what extent can existing legal deficiencies be, or will they have to be, lived with? To what extent are they such fundamental threats to policy goals that they will need to be addressed in a forthright fashion if the policy is to succeed? Here, two somewhat countervailing considerations should be kept in mind:
On the one hand, it is important to be realistic in analysing the importance of a law. No legal system is flawless, and it is often possible to achieve promising development results in a less than ideal legal environment. Just as good laws do not in themselves ensure good results on the ground, so poor laws do not always lead to bad results, if there is sufficient will on the part of government and others to find ways of mitigating their weaknesses.
On the other hand, however tempting it may be to find temporary or stop-gap solutions to legal flaws, it is also important to keep the longer view in mind. It may be possible to side-step legal problems for the time being, especially where there is a lot of powerful, high-profile support for a particular activity. But unless the more significant legal problems are dealt with head-on, there may well be difficulties in sustaining early successes. A basic rule is that when the initial wave of enthusiasm for a particular activity begins to wane, legal weaknesses are more likely to come to light and to be exploited.
The authors of this study believe that creating a sufficient legal basis for sustainable development, or removing crippling constraints, requires more than technical solutions. It needs the genuine involvement of all categories of stakeholders - government and non-governmental institutions, central and local actors, communities, local resource-dependent people and private sector organizations. This recommendation does not flow only from a belief that people should have the right to be involved. Instead, the authors of this study are making a practical point: without this involvement, there is simply little hope of passing laws that reflect reality - including the real needs and priorities of affected people - and that are capable of being effectively used and implemented.
This recommendation goes beyond simply holding a few seminars or workshops at the end of the drafting process. It requires a true commitment to listening to and understanding the needs, objectives, insights and capacities of the intended users and others potentially affected by the law, and finding ways to accommodate the multiple interests at stake. It requires the determination to prevent the process being driven by the preconceptions of lawyers, donors and other outsiders, however well-intentioned. This is time-consuming work that ideally should entail patient consultations in the field with people directly affected, not simply in a distant capital city. And these consultations should start early, not only when a first draft has already been completed.
Broad participation in lawmaking not only improves the quality of the law, but it is also a significant factor in improving its implementation. It helps create a consensus in favour of the law. It may stimulate organized support of the law and active pressure for its enforcement, as opposed to indifference or passive resistance, which may impede implementation as effectively as active opposition does. At the least, participation publicizes legislation in the society at large, among those directly affected by it and those expected to enforce it.
Participation combined with drafting is not usually sufficient to ensure a workable law. Real experience with related problems and situations needs to be brought in as well. Examples offered should be local or national where suitable precedents exist, but no country should be afraid of comparative examples where other countries have already had relevant experiences. This is especially true where several countries, one after the other, have to implement the same treaty. The experiences of the first ones cannot rationally be ignored by the next.
The usefulness of technical assistance in developing legislation needs to be emphasized, as it was in Agenda 21 (para. 8.13). The way most governments are organized, lawyers frequently have little experience in formulating a particular type of agricultural or natural resources legislation, or even much experience with the subject matter. The great value of assistance in this situation is that it can bring in the missing expertise. Part of this will be in the form of the expert's exposure to the international consensus on particular issues, including the concerns that have informed the preparation of international agreements. Part of the added value will be the expert's personal experience in designing and drafting legislation of a particular kind. An even more important part will be the information that he or she has absorbed about the ways similar problems have been dealt with elsewhere, as well as about the successes and failures in implementing different legal provisions. Cross-cutting issues can be highlighted and comparative experiences shared.
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