Environmental Policy and Law

The UN General Assembly (UNGA) recognized the human right to the environment on July 28, 2022 (resolution. 76/300). It came as a sequel to the Human Rights Council (HRC) resolution (48/13) of October 8, 2021 on the identical theme. The right is the foundation for all other human rights and for the UN Sustainable Development Goals 2030 (SDGs 2030). Most States have recognized the right in national constitutions and law. While international tribunals can be expected to clarify and enforce the human right to the environment, it is the national and sub-national courts where the right will be invoked and enforced. These national legal proceedings have begun. They face significant opposition by vested interests, as well as the inertia favoring business as usual. A case study examining the initial decisions in the State of New York (USA) illustrates the character of opposition to observing the right to the environment. Ultimately, procedural “due process of law” will combine with the substantive “human right to the environment” to build needed rigor into laws mandating stewardship of the nature and human wellbeing.

As humanity is facing a “triple planetary crisis” of climate change, biodiversity loss, and pollution, it seems imperative to strive for an effective integration of new international legal principles, rights, and duties in international environmental law. Following the recognition of the right to a clean, healthy, and sustainable environment as a human right by the UN Human Right Council (2021) and the UN General Assembly (2022), a new Covenant on the Right to a Healthy Environment would reaffirm this right. It can also shape and strengthen new international environmental norms. In order to ensure the effectiveness of the right to a healthy environment, the proposed covenant need to recognize other environmental rights, duties, and principles inherent to the right to a healthy environment and provide for concrete implementation and monitoring measures. This article examines the need for adoption of the proposed new covenant on the right to a healthy environment, before addressing the fundamental environmental rights, duties, and principles inherent to the right to a healthy environment that should necessarily be included, and analyzing how the proposed new covenant can be implemented and monitored so as to ensure effective protection of the environment and our environmental rights.

Recent years have seen an increase in climate-related protests and demonstrations. There is a clear disparity between the opinions of the public and those of the state in relation to climate change and how it should be tackled. At the heart of the problem is poor communication between citizens and state actors, which has resulted in a lack of support from the public for the state’s climate policy formulation and implementation processes. To increase support for new and existing climate-related policies and initiatives, and to ensure that the fundamental human right to public participation is protected, the state must make a concerted effort to engage with the public during the policy formulation, introduction, application and monitoring phases. This would ensure that state actors are better informed about the concerns of the public and that, when promoting decision-making in climate-related policies, citizens are given opportunities to exercise their right to public participation. It would also promote transparency and accountability in the decision-making process and create a more engaged citizenry and inclusive society. The processes driving greater public participation are not new; they have been encouraged and supported by United Nations (UN) Office of the High Commissioner for Human Rights (OHCHR) and have been incorporated into environmental law both at the national level and at an international level through the United Nations Sustainable Development Goals (SDGs). However, it may be necessary to rethink and reframe existing public participatory processes to encourage stronger cooperation between all stakeholders in environmental decision-making processes including climate change.

Earth’s life support systems depend on biodiversity and healthy ecosystems. Without radical transformations, staying within safe planetary boundaries becomes impossible. While the inequalities between Global North and Global South are increasingly acknowledged, the agency and rights of people often placed in the category of “vulnerable” -women, youth, indigenous peoples and local communities- are not sufficiently recognized. This article discusses the role of biosphere defenders in the context of the 2022–2030 Kunming-Montreal Global Biodiversity Framework and the right to a healthy environment. Through dissecting judicial cases, the article investigates promising examples of ways in which biosphere defenders use the law to trigger societal change. This article finds that biosphere defenders contribute to unleashing values of responsibility by various actors, translating biocultural values of ecosystems into evidence in judicial processes impacting bureaucratic and financial systems. Supporting the work of biosphere defenders and placing the right to a sustainable environment at the heart of biodiversity and human rights law will be vital in confronting head-on the planetary crises.

The Amazon is one of the most complex and important biomes in the world. Its role in global climate stability is recognized worldwide. The political changes that took place in Brazil in 2022 brought a new hope for the protection of the forest and the different peoples that inhabit it. The dissemination of correct information about the current stage of the Amazon is essential for the forest to be preserved. One cannot imagine the future without analyzing past successes and mistakes so as to avoid the repetition of failed policies. It is essential both for the protection of the rights of the indigenous peoples as well as preservation of thier habitat of Amazonia.

The generation of waste is certain and unavoidable. Waste will always exist in some form. It is, however, possible to minimize waste generation and thereby improve virgin resource utilization. Within the European Union, the concept of End of Waste is a legal instrument adopted to facilitate the transition from waste to product, thus by extension facilitate the conditions for a circular economy. In this paper, the implications of the legal definition transforming waste to product, End of Waste, is discussed against the backdrop of waste as a potential resource. Through legal analysis, three primary issues regarding the current formulation of article 6(1) of the Waste Framework Directive (2008/98/EC) are highlighted: (1) the cumulative conditions stated in article 6(1) creating (unnecessary) bottlenecks; (2) the fact that the conditions for End of Waste originally were intended to be operationalized through legislative acts, such as the regulation for iron scrap or glass cullet; and (3) the fact that there is no clear indication of what level of proof the conditions stated in article 6(1) requires and the ambiguity of its application this implies in general. The fact that there must be a specified use as well as a market for a ‘waste’ to transform into something else implies that the underlying idea of the incorporation of End of Waste loses some of its meaning.

The adoption of environmentally sound technologies (ESTs), with potential for significantly improving environmental performance relative to other technologies, provide one of the effective steps for achieving the Sustainable Development Goals (SDGs). The grouping of emerging economies of Brazil, Russia, India, China and South Africa (BRICS) significantly contributes to greenhouse gas (GHG) emissions and climate change. Hence the BRICS countries have a great potential in mitigating GHG emissions. They can play a key role in the global climate change negotiations. Therefore, adoption of ESTs in these countries play a crucial role in mitigating climate change. In this context, this paper analyses the national laws and plans in BRICS countries pertinent to ESTs that can contribute in attaining the “stabilization of GHG concentrations in the atmosphere” (Article 2) objective of the United Nations Framework Convention on Climate Change (UNFCCC). The legal provisions for development, dissemination, and technology transfer commitments concerning ESTs in general and within the BRICS countries in particular are analyzed to understand the current position and future directions toward climate change mitigation.

This article seeks to examine as to how relevant environmental policy and legal principles deal with adaptation and mitigation challenges posed by climate change in Sub-Saharan Africa. It reviews and analyzes relevant provisions and processes of the UN Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, the Paris Agreement as well as other relevant principles such as common but differentiated responsibility and respective capability (CBDRRC) and binding emission reduction targets. The Sub-Saharan Africa’s attempts to adapt to and mitigate the effects of climate change are reviewed along with the challenges in the region including the urgent need for climate financing. It concludes by urging the creation of a separate department of climate change by the Sub-Saharan African States, the implementation of environmental liability insurance, the revitalization of the West African power pool project, and the creation of a robust financial mechanism under the Paris Agreement for adaptation and mitigation policies in the Sub-Saharan Africa.

Environmental Fund Management (EFM) is a government effort to optimize EEI (Environmental Economic Instruments), to preserve the functions of the ecosystem. Based on regulation, EFM is entrusted to the Indonesian Environmental Fund (BPDLH) through channeling, fund fertilization, and distribution. BPDLH is appointed a trustee to manage the environmental fund, especially the trust/conservation assistance finance. The existence of trustee agreements often requires follow-up from a legal aspect. This is because Indonesia’s legal system does not recognize the trust law essentially acknowledging the dual ownership of an asset/property. Therefore, this study aims to analyze the use of the trust model in environmental fund management from a legal perspective. It also aims to evaluate the reasons Indonesian law needs to propose a trust policy as the basis for any activity adapting to conservation assistance, including EFM. This study was carried out by using a normative and qualitative juridical analysis. The results showed that the model used in EFM was a legal adaptation of the trust law and was adjusted to the Indonesian constitutional system not recognizing dual ownership. This trust model emphasized an agreement as a legal basis and limited the trustee’s authority in managing funds, leading to suboptimal environmental finance management, especially in nurturing money. Meanwhile, the environmental fund managed by BPDLH was relatively small compared to the needs. This proved that the trust model was represented by individuals/institutions as beneficiaries, based on an agreement with the trustee. From this context, the presence of Indonesian Trust law was capable of ending the legal vacuum in the constitutional system of the country. By specifically regulating the principles of trust and incorporating the dual ownership concept into the proposed law, the goal of fund management was achieved, including environmental finance. The management goal also maximized the benefits for the beneficiaries, namely the environment