Challenges in Implementation of Environmental Policy — Prof. Werner Menski — TEDxKanke

[00:00:00] Speaker 1: Thank you, dear convener. Thank you all ladies and gentlemen for being here and I thank the organizers for doing this and roping me in. I promised myself I wouldn't give any more lectures, but tough luck. It didn't work. So why does this not work? Where's my powerpoint? Okay. Time is up, I'm saying. I'm saying and I've been writing recently that time is up for talking and talking because I've been teaching law for so many years. We repeat ourselves endlessly and when we started doing, I taught Indian constitutional law in London. When we teach Indian law anywhere, inevitably constitutional law is very important. And over time, environmental law became really important and you can imagine climate change and all these issues became really central. So recently, I've been writing about this. So I've tried to present something here, but I also thought I would have an audience of students, maybe some law students, and I've seen some here. So maybe it's useful to have this presentation. I don't know. So we have only 13 minutes. I will have to rush. I know that. So I can observe, first of all, that we are talking a lot about sustainable development. But we actually do not have a clear idea or any agreement of what being sustainable actually means. In the global literature, there's now a debate about what is sustainability, because it just is not clear at all. And what that implies in practice is yet another issue. But I leave it there because we have limited time. I also want to explain, as a law scholar, the multiple roles of law in the necessary management processes of managing environmental issues and climate change issues. And to do this, I want to introduce to you today mainly the kite model. I call it Patan, Patan Bazi, you know all that, kite flying. Yeah? As a tool to activate and improve our actions. Okay, so here's the kite model. I'm going to explain it in a moment. But watch that there are four corners. And some speakers have already mentioned those four corners without realizing. Next, please. Okay. So we can theorize law forever. I've realized that we cannot find an agreed definition of law at all. So it's a lot of blah, blah, blah all the time. Yeah? But what is important is that a good theory actually needs to be able to work in practice. That has been my criterion for what is a good law and what's a good way forward. Globally, the pragmatic need, given the diverse ecology of law, is for responsible management and decision-making. So the focus is really on how do we do things, not just how do we talk about stuff, to promote proper balances of sustainability and development. But as I said, there is no global agreement on law and it's worse. You know, I'm speaking as a German here, law can be really bad. I think we know that. Law is always culture specific, depends on context and situational factors, including ethics and values. And we have partly spoken about this today, today, but not, in my view, enough. So I developed this kite flying image as a powerful tool for sustainable good developments in many fields, really anywhere, not just in law and not just related to climate change. It also shows the value of becoming a skilled cultural and legal navigator. And so, this is actually an empowering element. If you can, and you people can, speak different languages. So use it. Don't be shy. What's this? And so, it gives us agency to be more sophisticated and more developed in what we are doing. But there are constant risks of abusing such powers. I've had students, I taught them about the dowry problem in India, and then they went back to India and got even more dowry. Yeah. So, because they realized how simple it is to bypass the law. The challenge everywhere is to identify, navigate, and ideally maintain safe balances in any sphere of life, and also in relation to the environment. So we can talk here about law, just symbols, life, and you've seen this slide already, decision making. Next, please. So here's the kite again, just to remind you. Now, I'm going to explain this. Next. So there are many different laws and legal orders in the world. All share a grammar of key components. Okay, the slide is a bit messed up now, but I think it'll make sense. So corner one is the individual or psychological or ethical level. Mr. Sharma spoke about cosmovision. That's the kind of thing. Cosmos, universe, yeah? All these global but also very individual entities. Corner two is the social and also the economic side, the business side of things. Corner three is the state and the political level. And corner four is what we've heard about a lot already, international law, human rights, all these international conventions and so on. Ultimately, law-related actors are always individual. Whichever corner we're looking at, the agent, the actor is always a person, even if they stand for particular issues. And you see this with Trump, you know, as president of the U.S. Yeah? He didn't do many responsible things. He followed his own private agenda quite clearly. Now, the story of how I came over years from a triangle to the kite. This is for the law students here more. There's a book I wrote in 2006 on comparative law, which showed a triangle. If you can just see the next slide. Okay, can you see? And there is now a fourth element added. Yeah? Just to make it easy. Next, please. This is familiar already. Mr. Sharma, I had this also, but with four. Yeah? Next, please. This was too traditional. My students in London always said, PM, you know, Professor Mansky became PM. So, PM, something is missing. And what was missing was international law and human rights in the model that I had before. So, as a result, we now have four circles of law. Can you see? Again, you had this before, but now I've smuggled in here the legal components. So, natural law at the top, you know, the visions, the ideas, the ethics. On the side, you have social legal components. Then you have positivism, as lawyers call it, the state and its various components. And then you have human rights and international law. And all of this together becomes legal pluralism. It's a red herring for many lawyers because they don't like all these pluralities. Law is supposed to be clear and, you know, without ambiguity. Ha, ha. Yeah? Never. Because lawyers actually make money out of the lack of clarity. So, this model, if you can take the next one, okay, again, demands that we make decisions. Because if law is so many different things at the same time, we have to identify where we stand, from where we are approaching these particular issues. And several speakers here have already shown us very clearly the lady from Bangalore. Yeah? Which corner you're coming from, what you're doing is absolutely clear. Yeah? Okay. So, let's look at this. The first step that we all take as individuals also, as legal actors, if you like, is that we identify who we are. When I've been training judges in different countries, within seconds, these clever people realize that, oh my god, I'm in corner three. I am the state. Whoever I am, but I am, first of all, a judge. I am the state. Corner three. Yeah? And then come other decisions. Several speakers we've heard here are human rights activists. Quite clear. Yeah? And so, it's always what one thinks one is. So, is I just an individual in corner one? Yeah? A Muslim, a Hindu, a whatever, a person of whatever description? Or is I a member of a social group, a community or a business? Yeah? Is I a citizen or an office holder of a particular state? Or is the individual thinking and acting and activating himself or herself as a global citizen? The trouble is that we are all the time all of this at the same time. But we give more importance to one of these elements than to the others. That is the thing. And that's the question we all need to face. Young people, in particular, need to face when they make decisions about their careers, for example. Where do I want to go? What do I want to be? I've been careers advisor for law students in London for 20 years. And it was really very clear that this is a very important perspective that we need to develop. So, once we've done that, and we've identified where we are on this kite, we realize that the kite, actually with its four corners, has four other kites in every corner. Because every corner, again, is composed of the same elements of the main kite. And now comes the question, okay, let's take the community individual, the community activist. What now is important to her? Is she still seeing herself as a member of the community who wants to activate things? Or is her activism more motivated by human rights perspectives? Or is she actually employed by the state? You've shown how the state gets involved in all these things? Can you see? Yeah? Or is there some ethical element also here? Something spiritual in some form? Yeah? Is there an agenda of making a better world in a particular way? Because that also plays a role here. So, step two, yeah, is that we connect the chosen primary identity to the other types of law. And so, we cannot ever argue that law is only state law. Yeah? It doesn't work because there are also culture and religion and values and ethics and all that. So, we simply cannot avoid this pluralism that I've talked about. Otherwise, my kite will crash. Next, please. So, can you see? Next, please. It'll crash. Okay? It does not work. Abuse of law, basically, by simply overstepping one's limits. Next. Again, here you have three and four. So, the argument very common among lawyers. Yeah? That all we need is state law and international law. Forget about custom and society, those primitive people. Okay? We tell them what to do. That's it. We direct them. Yeah? And, you know, we don't want to talk about religion, of course. Quite clear. Yeah? Lawyers are very uncomfortable with religion quite often. But again, this kite will also crash. Next, please. So, very important is now this third step. So, what are we actually doing when we are making decisions? We're putting these four types of law into a particular sequence according to our very own personal preferences, prejudices, whatever. Yeah? And that explains then, I won't talk about it because it would go too far. But that explains then why two people disagree over things or two parties disagree in a conflict, for example. So, let's take an example. So, if we have 4-3-1-2, does this look like a human rights activist? You know, a climate change activist who is happy to rely on legal skills? Is also connected to a particular set of religion or ethics or something but isn't so interested in local people and the customary law. Can you see? So, that comes last in there. So, the second one would be the lady from Bangalore, maybe. Yeah? A community member. I don't know if you're a community member, but, you know, somebody who works on behalf of the community. Keen to protect local interests and values, relying on human rights principles. Yeah? And then, far less interested in the state, but you've actually shown that the state is, and you've said very clearly, the state is a factor, an actor in this context as well, quite clearly. All right. We tend to put last in this sequence what we don't like and we don't want to deal with. And, in my observation over decades, this is the biggest problem, that people are making very selective statements. They, of course, we are all specialists. We study certain subjects, yeah? But, we are very skillful at ignoring those kinds of issues we don't really want to address and talk about. And, I'm afraid when it comes to climate change and all these issues about environmental protection and forest issues and whatever, this does not work. So, to find good sustainable balances, we always need those four kite corners after starting from a particular position. And, as Mr. Sharma already said, it's simply not good enough to just demand a sustainable solution because the management of decision-making is the crucial thing, quite clearly. Talk, talk, talk. Now, the time for talking is up. We need to act. The bad news is that no kite corner on its own can be fully trusted to deliver good, stable, and sustainable development. So, we have to accept what we may not like. I've said this already. And, the good news is that this is really a very, very encouraging and powerful field for people to get involved. So, the young students here who want to develop their own lives and their own careers out of this, this is an absolutely brilliant field to work in and to make further decisions. Thank you very much.