An Emerging Principle: Weighing Effective Implementation of Environmental Law via Legal Indicators
Environmental law, despite its amazing growth for about half a century, has yet to be fully implemented in an effective fashion. Notoriously, across the world, there is a persistent gap between laws on the books and in practice. Hence the need to address this enduring implementation gap globally. This common concern for real law enforcement prompted the International Centre for Comparative Environmental Law (CIDCE) to design an innovative methodology for the development of science-based legal indicators of effectivity. Briefly illustrating the usefulness of such legal indicators, this note advocates their acknowledgement as a key tool for an accurate assessment of the effectivity of environmental law at national, regional and global levels. This would entail the recognition of an emerging principle of measurement of the effectivity of environmental law, hopefully in conjunction with the upcoming celebrations of UNEP@50 and Stockholm+50.
Specific legal indicators: an innovative assessment tool of environmental law effectivity
As early as 1935, the socio-jurist Henri Lévy-Bruhl observed that knowledge of the legal facts “cannot do without precise and methodically established numerical data”.[1] Similarly, Nicolas de Condorcet, philosopher, mathematician and politician, maintained earlier that progress of quantification should go hand in hand with the design of a uniform and universal legal system, one in which it should be possible to “calculate” the legal rules applicable to all humankind.[2]
These reflections seem particularly fitting today in terms of assessing the effectivity of environmental law, given its universal character and its applicability to humanity as a whole. However, due to the lack of appropriate legal evaluation tools, the effectivity of environmental law has not been thoroughly investigated and measured. While some empirical studies have considered particular phases of law enforcement procedures, they did not embrace all the legal steps involved in the implementation process. Until recently, no in-depth research work had been conducted for the creation of specific legal indicators of effectivity.
To address this gap, the International Centre for Comparative Environmental Law (CIDCE) carried out a study on proper tools for environmental law effectivity. Outlining a novel methodology for the design of legal indicators of effectivity, it was published in 2018 under the title: Les indicateurs juridiques, outils d’évaluation de l’effectivité du droit de l’environnement. Subsequently, a research programme on legal indicators was initiated in 2019 under the Normandy Chair for Peace as part of the Law for Future Generations.
To extend previous research on this assessment tool, seminars were held at the University of Caen, France to produce practical outcomes that could be replicated globally and nationally. The tool was tested for effectivity evaluation of environmental law in Africa (Tunisia), Europe (France, Portugal) and South America (Brazil), with plans to use it more widely in other regions of the world, and to measure the achievement of the Sustainable development Goals (SDGs) through effective use of existing legal instruments.
Building on this experience, an expanded edition of the 2018 essay was produced in 2020 and published the following year in three open access versions in English, French and Spanish, titled respectively: (i) Measuring the Effectivity of Environmental Law. Legal Indicators for Sustainable Development; (ii) Mesurer l’effectivité du droit de l’environnement. Des indicateurs juridiques au service du développement durable; and (iii) Midiendo la efectividad del derecho ambiental. Indicadores jurídicos para el desarrollo sostenible.
The proposed legal indicators are intended to scrutinize the different phases of the legal process of environmental law application. Creating and using this new tool will make it possible to measure statistically and mathematically, on scientific grounds, the various factors that contribute to the effective implementation of national and international environmental law.
At present, official assessments of environmental policies through state-of-the environment reports do not allow accounting for the existence nor effectivity of environmental legislation, as they only refer to scientific, economic or social indicators.
It should be noted that the term “effectivity” is deliberately used in this context, rather than the usual word “effectiveness”. The notion of “effectivity” denotes what produces real and concrete effects. “Effective” law is law in action. It is “living” law or “real” law, beyond formal law or law on the books. “Effectivity” is the intersection of the law and fact, which ideally leads to unity of the law and fact. Thus, a legal rule should not only exist, but also be applicable, respected, enforced and sanctioned by the administration or the court
Conversely, the term “effectiveness”, if used, would involve the risk of semantic confusion and substantive inaccuracy, as its common equivalent is efficacité in French and eficacia in Spanish, which both translate in general as “efficiency”. Yet, “efficiency” carries a different connotation: a rule is considered “efficient” if it ends up being socially relevant and beneficial. “Efficiency” refers to the useful impact of a legal norm on society, its contribution to achieving a positive result outside the legal system, whereas “effectivity” of the law is measured within the legal system. At present, official assessments of environmental policies through state-of-the environment reports do not allow accounting for the existence nor effectivity of environmental legislation, as they only refer to scientific, economic or social indicators. That is why environment-specific legal indicators would represent a major contribution to rigorous evaluations of environmental policies. Such assessments would also help to draw the attention of policy makers, elected officials and civil society to gaps in or regressions of the law. Legal indicators would likewise enable law enforcement officers and the public-at-large to be better informed about the role that environmental law could play in the success or failure of environmental policies.
Science-based legal indicators: a key instrument for accurate measurement of environmental law effectivity
As illustrated by UNEP’s Environmental Rule of Law report (2019), the notorious gap between laws on the books and in practice persists throughout the world. To address this enduring implementation gap, the report calls for regular evaluation of the state of environmental rule of law, using “a set of consistent indicators”.
The proposed legal indicators, as depicted in Measuring the Effectivity of Environmental Law. Legal Indicators for Sustainable Development, seek to address six criteria for the application of the legal rule, namely:
- Existential indicators: whether the rule exist and in which legal text;
- Applicability indicators: constitutional and legal requirements for the application of the rule;
- Institutional indicators: relevant authorities, control bodies, financial resources;
- Substantive indicators: content of the rule, and how its provisions are applied;
- Procedural indicators: how and by whom the rule is applied, monitored and sanctioned;
- Non-legal indicators: social, economic, cultural or political obstacles affecting effective application of the law.
Creating legal indicators is a multidisciplinary task involving a robust team of lawyers specializing in environmental law along with experts in other disciplines, such as mathematics, statistics, sociology, ecology and political science. As described in Measuring the Effectivity of Environmental Law. Legal Indicators for Sustainable Development, the design process of legal indicators begins with the selection of the area of law to be evaluated. This is followed by the identification of relevant categories of effectivity criteria, and then by the development, through a committee of experts, of detailed questionnaires for the formulation of legal indicators, to be used for the assessment of particular environmental law issues.
Measuring effectivity of the law by means of legal indicators is a complex undertaking that requires input from experts with a multifaceted skillset of competencies: legal, sociological, mathematical and statistical. To be accurately measured, the concept of effectivity of the law needs to be translated into a mathematical model. As effectivity measurements are rarely used within the application of law, inspiration was sought in industry, where the most widespread method used is the Statistical Process Control (SPC). It was found that SPC could usefully guide the development of a methodology to measure effectivity of the law with legal indicators.
In this regard, five issues need to be tackled for the measurement of legal indicators: (i) object of measurement; (ii) method of measurement; (iii) resulting indicators; (iv) statistical monitoring; and (v) graphical representation. The latter finally helps to clearly visualize a situation in formats that are easy to understand, such as the following radar chart theoretically displaying the overall effectivity of the law.
Legal indicators also enrich governance data by highlighting the social function of the law and pinpointing the legal, institutional and cultural obstacles to environmental law enforcement.
Enshrining legal indicators for environmental law effectivity in the outcome documents of UNEP@50 and Stockholm+50
Almost everywhere, environmental law remains poorly applied despite considerable efforts to improve its effective implementation. The proposed legal indicators provide an innovative tool to help address this widespread application gap.
Mirroring the life of the law through the stages of its implementation, legal indicators are the driving force behind improved functioning of the law. They are meant to promote change, detect barriers and regressions, and identify levers for progress, based on a structured narrative of the causal chain of non-effectivity.
Importantly, the last IUCN World Congress, held in Marseille in 2021, adopted resolution 060, “Measuring the effectiveness of environmental law thanks to legal indicators”, which: (i) asked the IUCN World Commission on Environmental Law to develop experiments and training in the creation of legal indicators; (ii) recommended the addition of legal indicators to the existing SDG indicators; (iii) invited Parties to environmental conventions to use legal indicators for the assessment of their effectiveness through country reports; (iv) invited IUCN Members to promote the implementation of legal indicators in their national environmental law; and (v) urged governments and secretariats of international and regional organizations to introduce legal indicators in their state-of-the-environment reports.
Similarly, the 2020 “Guidelines on the Role of International Law in Sustainable Natural Resources Management for Development”, adopted by the International Law Association in its Resolution 4/2020, recognized that “the creation of legal indicators for effectiveness of international law related to sustainable development is critical […]. The innovative idea of developing and applying these legal indicators offers the chance to generate a larger system in which assessment of sustainable use of natural resources can be conducted”.
In this connection, Our Common Agenda, the 2021 Report of the Secretary-General of the United Nations, calls for a “global road map for the development and effective implementation of international law” (para. 96), in which the proposed legal indicators could belong naturally.
Domestically, too, some laws explicitly mandate the use of indicators, such the 2014 sustainable development acts of Burkina Faso (Art. 9) and of the Ivory Coast (Art. 6), both of which provide for the creation of specific indicators to monitor progress in attaining sustainable development.
Legal indicators also enrich governance data by highlighting the social function of the law and pinpointing the legal, institutional and cultural obstacles to environmental law enforcement. Their benefits are even greater when considering the significant cost of non-compliance with the laws, which for example was estimated to be around Euro 55 billion per year in the European Union.[3]
Legal indicators have of course their limits and should not be expected to guarantee, alone, full effectivity of the law. While they cannot save the planet, they can surely contribute to improving the outcomes of the law, warning of abuses, identifying obstacles and suggesting solutions, ultimately aiding to ensure progression and avoid regression of environmental law.
The advent of such legal indicators and their progressive acknowledgement, both nationally and globally, reflect an emerging principle of measuring the effectivity of environmental law, which should hopefully be enshrined in the outcome documents of UNEP@50 and Stockholm+50.
[1] H. Lévy-Bruhl, « Note sur la statistique et le droit », in La statistique, ses applications, les problèmes qu’elles soulèvent, Paris, PUF, 1935, p. 141.
[2] “Observations de Condorcet sur le vingt-neuvième livre de L’Esprit des lois”, in A. Supiot, La gouvernance par les nombres, Paris, Fayard, 2015, p. 153.
[3] European Union Network for the Implementation and Enforcement of Environmental Law, Challenges in the Practical Implementation of European Union Environmental Law and How IMPEL Could Help Overcome Them, Brussels, 2015.
