SL needs a proper mechanism to implement laws: UK expert

Sri Lanka, which has sufficient environmental laws in books, needs to have a proper mechanism to implement those laws properly and it will be the challenge for the country in the coming decades, a top British environmental law expert said.Professor Veerle Heyvaert, an Associate Professor in Environmental Law at the London School of Economics and Political Science, said that a lot of problems or shortcomings in the system were to do with proper implementation.

“Apparently there are legal provisions on accessing environmental information in Sri Lanka but there is no mechanism yet to put into facts since there is no particular channel through which people can request and obtain the access to 

environmental information,”

she said.In an exclusive interview with the Daily FT, Prof, Heyvaert said 

working on implementing strategies that work for the country is going to be a challenge for Sri Lanka in the coming decades. She also stressed the importance of Sri Lanka paying more concern to climate change, saying this was vital as it would affect the country’s economy, tourism and the rich bio-diversity.

“Sri Lanka is surrounded by water and sea level rise will also affect the country. The warmer climatic condition will affect marine resources. Climate change is a vital issue in Sri Lanka as it will affect the country in a huge way,”

Prof. Heyvaert said.Prof. Heyvaert, who was in Sri Lanka at the eighth International Research Conference organised by the General Sir John Kotalawela Defence University recently, delivered a speech titled ‘Inculcating Professional Ethics for Legal Practice’. She was chosen as the ‘Moragoda Professor 2015’ by the Moragoda International Law Trust, which was established in 2013 with the objective of furthering the advancement of education in the field of international law in Sri Lanka with particular emphasis on public international law.Following are the excerpts of the interview:

Professor Veerle Heyvaert, Associate Professor in Environmental Law at the London School of Economics and Political Science

By Shanika Sriyananda

Q: Can you explain why environmental law requires a global research community, in shaping the agenda of policymakers?

A: Well, environment law requires a global research community because most of the problems nowadays that environmental laws tackle are global problems. If an individual country for an example was 100% committed to beating climate change and was really pulling out all the stops to adopt strong laws to address it, it might be completely pointless if the other countries don’t act with concerted with in as it is a globally created problem. 

Sri Lanka, for example, has been affected by climate change caused by emission from Canada or India. For these reasons we have similar issues with other major environmental challenges of time such as biodiversity depletion, air pollution and marine pollution, is becoming an increasingly serious problem. And all these kind of issues require some degree of coordination and concerted action to be taken to tackle these issues. So you also need the research community to develop a common core of understanding and to develop basis for exchanges and communication. 

 

Q: What do you think about transnational policy making?

A: As to transnational policy making and law making, we have observed that increasingly a number of large non-state actors for example the NGOs and also the private sectors such as banks, etc., through more enhanced communication, through globalisation and through the internet, they cooperate and collaborate more across countries. They are often engaging in activities that are very similar to what the state used to do in issues of environmental regulations. For example, the Forest Stewardship Council which developed standards for certification, labelling and responsible managing of forests. It is good to be aware of alternative sources of authorities and how they are shaping the body of rules and stimulates effects of the environmental behaviour.

 

Q: With regard to the trans-boundary nature of environmental law, how does a country take effective measures against violation of their environmental rights against a 

neighbouring country?

A: It is very difficult for a country to act against this situation but fortunately there are a number of international law precedents now that have gone some way towards imposing a higher degree of expectations. You could call that good neighbourliness of neighbouring or adjacent states. There are principles such as principle of corporation. For an example if a state plans to develop a major dam and plans to divert a river to get irrigation elsewhere and if this affects the downstream states, then they will engage in cooperation and they will also convey information on environment impact assessment to the neighbouring states. There are a number of legal principles and opportunities for the states to initiate liability actions. In every instant of irresponsible environmental behaviour, there is the International Court of Justice. But there are hundreds of such cases that go unacknowledged and uncompensated. The fact of the matter is that it is very difficult for the states to very effectively and consistently police each other.

 

Q: What is your suggestion to resolve this effectively?

A: I think it is increasingly driven by large companies, which are involved in development projects. These companies are zooming for special legal status in the international arena. We see in investment treaties, where large companies and investors are now claiming that ‘well we have to be able to rely on fact that the state will not change its regulations because that will undermine our investments’. If you accept that argument, there are investor treaties that give investor protection. I think we should look more on the flip side issues as well. If there they are zooming special investor status and getting special privileges, they should also have stronger responsibilities and then we will have stronger accountability in challenge those companies on how to plan and how to use the environmental decisions to avoid environmental impact not only locally but also other countries. It is not easy but there should be political willingness.

 

Q: How can the researchers contribute towards changing this scenario? 

A: Yes, definitely they can contribute but the researchers by themselves can’t change the law. Political willingness should be there. The researchers can identify and pinpoint why it happened and what happened and the way the law works in order to achieve that kind of results.

 

Q: How do you comment about carbon trading, which is becoming increasingly popular in reducing emission?

A: Carbon trading is a very appealing theory that instead of making all the reduction by yourself you might in a way commission another party to make the reduction for you. So we get the same level of reduction overall at a cheaper price. The problems emerged with our practical experience in carbon trading so far which has been rather disappointing. 

In the EU, we have the largest carbon market in the world. It is being very challenging regime to administer and keep going. It requires very frequent intervention by regulatory authority to keep that market float. It is a good idea and theory and we are also learning and in practice it takes a great deal of diligence to implement properly. This is going to be the model. 

Too many countries by now have invested in carbon trading methods for us to dramatically change the cause. What is really important is to have new carbon regimes, to look at the EU and California models and to analyse what went wrong and right there and how can we learn from mistakes and experiences they have. 

 

Q: Do you think there are more innovative methods by which both developed and developing nations can be incentivised to minimise their CO2 footprint?

A: Yes, absolutely there must be. I am not a scientist or an engineer but to very best of my understanding we have made fantastic strides in developing, for example developing renewable energy like solar energy, which is more effective. There are definitely the possibilities to make great advances, which allows us to reduce our carbon footprint. The question again is that you have a certain number of large powerful players. What they know, do and what their business is, is fossil fuel extraction. They have an interest in not stopping or supporting those development. We know that already we actually have more fuel than we can handle. We have already widely overshot our targets to keep climate change within a 2 degree Celsius rise, which is efficiently binding targets under the UN Framework Convention. So we know we already have more fuel than we need if we want to comply with the international law. They have already started drilling in the arctic and this is not because we don’t have means. This is due to the interest of doing more. I feel many people with me feel that not stopping this, the future generation will deeply regret what their grandparents have done. 

 

Q: What are your thoughts on reconciling the identity of nation states and effective implementation of international environmental law?

A: International environmental law is not a very forceful mechanism. If a state breaches international environmental law, there is generally not much that can be done about it. There are very few mechanisms to actually to keep a state effectively aligned. It is by nature a softer kind of law than for example international criminal law. That doesn’t mean that it is ineffective. There is a strong kind of authority with power that emanates from the principles of international environmental law. 

The fact of the matter is that even if the states can get away with being in breach of certain international legal principals, it certainly doesn’t mean that they like to have them pointed out to them by the commentators to say ‘look what you are doing here is a breach of international environmental obligations’. We know that states take this seriously because they are very unwilling to sign and ratify agreements that they have a problems with 

If they found that this was just a document that had no value, there wouldn’t have no big interest about signing the agreement. So there is authority in the environmental law and it helps to keep states in line. But it is not a cohesive authority. It is more of a pervasive authority. If you look at the international environmental law and if you compare it with the international criminal law, you will think that this is not effective and why bother. But on the other hand if you look at how the ethos of states have changed over the years, it is hard to deny that that there must be some influence of the international environmental law.

 

Q: How important is to hold multinational corporations to be recognised as major actors or accorded the same status as states in international environmental law in relation to accountability?

A: It is vital. Recognising the role these large companies play in different ways and trying to understand realistically the best way to engage in with these companies. It is vital for states, public authorities and civil societies to retain some kind of stake what decisions are going to be made and how their environments are going to be affected. 

 

Q: Sri Lanka is a country rich in biodiversity and natural resources; can we be totally immune to the effects of climate change? 

A: Undeniably this is a country which is facing effects of climate change. You experienced the devastating tsunami in 2004. Whether or not it relates to the climatic change conditions, we don’t know. It is big problem in environmental disasters, generally. Very often this is a kind of statistical relation but it is very difficult to pinpoint specific relation.

However, undeniably extreme weather effects are going to become more frequent in the warmer climate. It is also going to affect the eco-system, natural fauna and flora in very unpredictable way. This is vital for countries like Sri Lanka because it has a wonderful eco-system and beautiful numerous national parks in a small island. They are going to be heavily affected and also tourism and the economy. Sri Lanka is surrounded by water and the sea level rise will affect the country. The warmer climatic condition will affect marine resources. Climate change is a vital issue in Sri Lanka as it will affect the country in a huge way.

 

Q: Can you explain the importance of every nation pulling its own weight in fighting climate change? 

A: Obviously climate change is a collective problem and has classical political signs expressed by Garrett’s Tragedy of Commons. He paints the picture for a common area for grazing. Everyone can let their cows graze in common area. So every individual with their interest in putting in an extra cow on the common outstrips the interest in keeping the common peaceful, relax and manageable. Every individual acted on their short term limited interest and at last the common was depleted and there was no grass for any cow any more.

This is a similar kind of problem that we are facing individually. Every country individually there are number of reasons and it might be country’s short term and has never shown an interest to underperform the climate change regulations. The problem is that if every country does that according to Tragedy of Commons, there will be massive devastation for everyone. Because of this reason we need may not be one single global response but concerted and large-scale actions and we also need different segments of the society come and engage since this is not a problem that we are going to confront effectively by putting all eggs in one basket; we need to work on every possible means to adopt change in private law and public law and foster non state actions in any possible manner.

 

Q: What are your view son Sri Lanka’s legal provisions to protect the environment?

A: From what I understand, there is quite a bit of legislation depending from area to area, although I am not an expert on Sri Lankan law. From the presentations I have seen I think a lot of problems or shortcomings have to do with implementation. You have lots of laws in your books but no proper mechanisms to be put into facts. 

At the KDU seminar a talented young female researcher gave a presentation about access to environmental information and how that is a crucial aspect to effectively gather information on environmental regimes going in the country. Apparently there are legal provisions on access for environmental information in Sri Lanka but there is not mechanism yet to put into facts since there is no particular channel through which people can request and obtain the access to information. For me it seems to be that working on implementing strategies that work for the country is going to be a challenge for Sri Lanka in the coming decades.

 

Q: What are your reflections on the seminar at the KDU? 

A: It has been a privilege to be the guest professor at the KDU. Every day I gave lectures on international environmental law to a very keen and attentive audience. It is affirmed that this is a country that has a very strong concern about the environment. There is very strong awareness on the need to protect the fragile resource and this beautiful heritage through effective laws and regulations. Also I think developing countries would do well to emphasise more. I think sometimes discussions on climate change have polarised people’s thinking a bit and what they think is that developing countries are saying that the fault is with the developed countries and they should fix it. The developed states say ‘yes we can fix it by ourselves but you also do something’. But my experience in Sri Lanka is that there is a sense of responsibility. It is not that Sri Lanka is expecting the outside world to do everything in terms of fixing the problem, they want to be a part of the solution. The question is finding the right balancing approach. It has been a very rewarding and affirming experience for me.

 

Q: How do you feel as a Moragoda Professor? 

A: I feel I am extremely honoured. It’s a wonderful initiative and hope this will run for many years. I will go back to the UK and leave Sri Lanka as a well-organised, serious and ambitious country that is really thinking of the major issues of today.