Future Perfect

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Non-regression in environmental protection:

a new tool for implementing the Rio Principles

Michel Prieur and Geoff Garver, International Centre of Comparative Environmental Law

opes are high that the United Nations Conference on

Sustainable Development (Rio+20) will be a major

step forward in sustainable development and environ-

mental protection. But, given the mounting evidence that the

sustainable development agenda adopted at the United Nations

Conference on Environment and Development (Earth Summit)

in Rio in 1992 has not achieved its goals, forward progress is not

enough. It is time for the international community to recognize

a new tool for achieving environmental protection under the Rio

Principles that emerged from that event: a commitment to envi-

ronmental non-regression, as a way to prevent backsliding on

the levels of environmental protection provided under national

and international law. This is the story of how an international

group of dedicated environmental lawyers is pushing the inter-

national community to make this commitment at Rio+20.

Twenty years ago, when the Earth Summit took place in Rio and the

international community adopted the 1992 Rio Principles, sustain-

able development was an emerging concept and public awareness of

climate change was still limited. Since then, we have learned a great

deal about the increasingly precarious relationship between human

society and our finite planet Earth. Important post-Rio tools like the

ecological footprint tell us we are consuming the Earth’s biocapac-

ity faster than it is regenerated – a clear sign of unsustainability.

The Intergovernmental Panel on Climate Change has issued four

sweeping reports on the increasing danger of climate change. The

Millennium Ecosystem Assessment reports, released in 2005, warn

of the dire and declining state of biodiversity. In 2009, distinguished

researchers identified nine planetary boundaries of safe operating

space for humanity and they told us that we have already crossed at

least three of them (climate change, biodiversity loss, and human-

caused loading of nitrogen in ecosystems). This new information

creates an entirely different, more urgent context for Rio+20 than

existed in 1992.

Rio Principle 11 declares that: “States shall enact effective envi-

ronmental legislation.” International and national environmental

laws and policies generally seek to reduce pollution and to protect

and enhance biodiversity using the best pollution control technolo-

gies, and effective environmental law seeks continual improvement

in environmental protection. Following the Earth Summit, envi-

ronmental law has seen advances in many countries and at the

international level, in the form of new domestic laws and multi-

lateral environmental agreements. More and more countries and

regions are also recognizing a human right to a healthy environ-

ment, which, as with all human rights, should be protected against

any type of regression. However, the lesson from the two decades

since the Earth Summit is that serious environmental

problems have persisted despite the Rio Principles. The

looming threats of climate change, loss of biodiversity,

toxic pollution, nitrogen loading and more make clear

that levels of environmental protection are not yet high

enough, and the human right to a healthy environment

is not yet adequately protected.

Paradoxically, these ecological threats can enhance

economic or social pressures to decrease, not increase,

environmental protections as a way to promote

economic opportunities. For multiple reasons, legal

reforms in economic or social arenas can arise, either

explicitly or by stealth, leading to reduced protection

of biodiversity and increased risks of pollution and

ecological distress. Of course, as environmental degra-

dation causes further economic and social problems

in the long term, this creates a vicious cycle that runs

counter to the Rio agenda for sustainable development.

That is why a commitment to non-regression is needed

to ensure well-being for present and future generations

of people and other life, and to halt the environmen-

tal degradation enabled by rollbacks in environmental

laws and regulations. International and national law

and jurisprudence need to recognize, as a key tenet of

environmental law, the principle of non-regression that

prevents any rollback of existing levels of environmen-

tal protection.

The

Centre international de droit comparatif de

l’environnement

(CIDCE – International Centre of

Comparative Environmental Law) has been a leader in

pushing the international community to adopt the prin-

ciple of environmental non-regression. The president

of the CIDCE, emeritus Professor Michel Prieur of the

Université de Limoges, and others in the organization,

realized that the idea of non-regression in protection

of human rights should apply equally to environmen-

tal protection – whether in recognition of the right

to a healthy environment or because of the enormous

challenge that lies ahead to combat climate change,

biodiversity loss and other environmental problems. In

2010, Michel Prieur and Professor Gonzalo Sozzo of the

Universidad Nacional del Litoral in Argentina launched

the Non-Regression Knowledge Forum. They sought

authors for a book that would promote the principle

of environmental non-regression in environmental law

and present a comprehensive review of environmental

nvironment

legal

and

ethical

issues