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:

• 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.

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.