Examining the Transformational Power of Environmental Law

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By Professor Karen Hulme, Essex Law School

I wanted to share some highlights of last week’s IUCN Third International Environmental Law Conference in Oslo. The title of the four-day conference was ‘The Transformative Power of Law: Addressing Global Environmental Challenges’.

The backdrop of the conference was not lost on the 400+ participants (with more joining online), with the ongoing destruction being inflicted on Ukraine, devastating hurricanes in central and northern America, recent unprecedented heatwaves in Europe and massive floods in Pakistan. Thus, we heard about the importance of the rule of environmental law in the face of such unprecedented and monumental threats to human and environmental security – including the triple threat of climate change, the fastest rate of biodiversity loss on record, and escalating global pollution levels.

Yet, there was also time to celebrate what is, indeed, a monumental anniversary year in environmental circles, with the recently celebrated 50th anniversary of the 1972 Stockholm Declaration on the Human Environment, and its successor landmark instruments (1982 World Charter for Nature, 1992 Rio Earth Summit, 2002 Johannesburg World Summit on Sustainable Development) plus anniversaries of the three 1992 treaties on Climate Change, Biological Diversity and Desertification; and the 1982 Law of the Sea Convention. Finally, in my own area, it is also 45 years since the adoption of the 1977 Additional Protocols to the Geneva Conventions which included provisions for the first time on the protection of the environment in armed conflict. 

One of the best Plenary sessions in my opinion was that composed of the Supreme Court Justices from around the world. They were tasked with answering the conference’s themed question in relation to the ‘transformative power’ of the judiciary. We all know that members of the judiciary have a very difficult job to do at times, and their bravery in the face of Government repression often draws little attention or goes largely unnoticed. While several justices argued that their role on the bench was a rather restrained one, due to their own particular legal systems, others demonstrated a more creative, transformational approach to their role in interpreting the law. Often the need for such creativity stems from Government inaction on existing promises. Fewer are more legendary than WCEL’s former Chair, Dr. Parvez Hassan, who in 1994 argued the landmark public interest litigation case of Shehla Zia vs. WAPDA in the Pakistan Supreme Court, citing similar rulings in the Indian Supreme Court, to expand the human right to life to also include the right to a healthy environment.

Among the many excellent panellist contributions though were the words of Dr. Emmanuel Ugirashebuja, Minister of Justice and Attorney General of the Republic of Rwanda and former President of the East African Court of Justice. He spoke of the wider ripple effects that just initiating a legal case can create. While in some situations, he said, simply the commencement of a legal action might force the Government or other public actor to drop a planned environmentally-damaging project, or at least to mitigate its potential environmental impacts. Yet, Dr. Ugirashebuja also said that such litigation may also give the judges a vital opportunity they can then use to advance legal interpretations to better protect the environment in the future.

The final day also saw an interesting panel covering a wide range of new and emerging norms of international environmental law. Dr. Nick Bryner reminded us that since Covid, many states had rolled back on their environmental promises and reduced their mitigation efforts, arguing that other emergencies now needed to take precedence. Note the timely World Bank Report on just this topic in relation to escalating poverty levels. But, he said, under the norm of non-regression, removing environmental protections should only be done where the science has changed, thus where such measures are no longer scientifically necessary – not due to political expediency. Clearly, with the triple planetary threats facing the planet, now is also not the time to be regressing on environmental protection.

Professor Nicholas Robinson suggested a principle of resilience, notably of building resilience into environmental impact assessments to ensure that planned projects are resilient to such threats as climate change. And finally, Professor Michel Prieur’s words focused on the lack of legal indicators in relation to implementation and compliance. The Sustainable Development Goals, he said, contained only indicators of a scientific or economic nature, and thus legal indicators are much needed to ensure states fulfil their legal obligations.

Prof. Hulme, Chair of the WCEL Specialist Group on Environmental Security and Conflict Law, presenting at the IUCN 3rd International Environmental Law Conference in Oslo (Oct. 2022)

There were plenty more plenary sessions as well as some 34 parallel sessions to choose from covering plastic pollution, nature-based solutions, rights of nature, wildlife crimes, BBNJ and sea-bed mining developments, energy governance, reversing the biodiversity decline, the rights of future generations, and on armed conflict and ecocide. Consequently, the discussion was very rich and varied. There were many mentions of the need to achieve the goal to be nature positive by 2030, as well as for a circular economy, including in relation to UNEA’s plastics pollution treaty currently being drafted, and the need to change consumption and production patterns to meet the biodiversity post-2020 framework due to be discussed (and hopefully adopted) at December’s CBD COP 15.

With July’s adoption by the General Assembly of a resolution recognising the right to a clean, healthy and sustainable environment, Professor David Boyd, the UN Special Rapporteur on the right to a healthy environment advocated the need for the right now to be enshrined in all legal instruments, such as the new plastics treaty, the Post-2020 Biodiversity Framework and in a Protocol to the European Convention on Human Rights, amongst others.

The IUCN World Commission on Environmental Law (WCEL) website will showcase many of these presentations shortly, and for environmental lawyers please note that the WCEL is the legal branch of the International Union of Nature Conservation (IUCN), and you can become a member here – membership is free. There are many specialist groups of WCEL which you may like to join also, including environmental security and conflict law, climate change, biodiversity, oceans law, ethics, water and wetlands, soils, as well as the early career group, and two task forces on the plastics treaty and rights of nature.

IUCN WCEL 2022 Oslo International Environmental Law Conference

Prof. Karen Hulme has particular interests in environmental law, the laws of armed conflict and environmental rights. She is also the Chair of the WCEL Specialist Group on Environmental Security and Conflict Law.

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