Resilience and law
Learning for resilience in the court room
Practices of the European Court of Human Rights support adaptive governance
- Study looks at how well the European Court of Human Rights (ECtHR) contributes to adaptive governance structures
- Analysis of twelve environmental cases heard by the ECtHR between 1990 and 2009
- Overall, the court's adjudicative practice - the way a case is discussed and decided - supports adaptive governance
Managing social-ecological systems with a resilience perspective requires continuous learning, allowing for plans to change and evolve as the system responds and the effects of management efforts become evident.
This type of "learning-by-doing," captured in the concept of adaptive management, is proposed to support resilience by enhancing the fit of management plans with the system at hand, producing local solutions with the best possible outcomes.
At least in theory.
Ideas of justice important guides
The practical implementation of adaptive management has proven difficult, and the rigidity of legal systems has been identified as one of the barriers.
Laws are typically designed to clearly discern between right and wrong, and may therefore not offer much leeway for the experimentation required in adaptive management practices.
However, ideas of justice and equity are important for guiding not just our understanding and interaction with nature but also how we think about environmental management. Pursuit and protection of these ideas comes from a range of governance and institutional mechanisms, including law.
"The viability of legal systems rests to some extent on their ability to guide the interactions between evolving social values, norms and ideas of justice in relation to changing environmental conditions and scientific knowledge," explains centre PhD student Simon West.
"Law could have an important role to play in stimulating learning and mediating between different equally valid understandings of social-ecological systems"
Simon West, lead author
A broader framework
Adaptive governance is about the broader social context in which adaptive management takes place, and attempts to reconcile experimental learning-by-doing with different social interests, multiple perspectives, and changing ideas of justice and equity. In adaptive governance learning within and about social-ecological systems and their resilience includes how ideas of justice and equity interact with ecosystem change.
In a recent study West, together with centre researcher Lisen Schultz, have analysed how well the European Court of Human Rights (ECtHR) contributes to adaptive governance structures. In the study they have analysed transcripts of twelve environmental cases heard by the ECtHR between 1990 and 2009. Citizens who have accused their national governments of failing to protect them from environmental pollution have brought these cases before the ECtHR.
The authors specifically looked at how well the ECtHR addresses three attributes that are considered to enhance adaptive governance:
The first attribute concerns the use and validation of diverse forms of knowledge, for example whether traditional or experiential knowledge is heard alongside scientific knowledge.
The second attribute is how the ECtHR affects the possibilities for adaptive policymaking and management in the European contexts where it operates. Finally, the third attribute is whether the ECtHR restricts or enhances polycentricity in environmental matters, in other words if there are several decision nodes that operate autonomously but under the same overarching set of rules.
Promoting learning and adaptivity
On all three accounts the ECtHR's adjudicative practice - the way a case is discussed and decided - supports adaptive governance.
For example the practices of the Court relied on a number of different sources and types of information.
"We found no examples of explicitly admitting traditional or local ecological knowledge in the cases we studied, but the admittance of experiential testimonies and reliance upon second hand information suggests that the court would have little difficulty in doing so if it were relevant," says Schultz
The authors also found that the Court supports adaptive policymaking as it allows nations in its jurisdiction to experiment, monitor, and make decisions based on incomplete and uncertain knowledge. The ECtHR also supports polycentricity as it supports member states to have their own environmental policy making under the rule of law – the overarching set of rules that individual nodes should play by.
"On the scale of local adaptive management it may seem that legal systems are a hindrance to managing for resilience, but we have found that for legal regimes that operate on a broader scale and use different tools, this may not be the case," West concludes.
"Rather than hindering learning for social-ecological resilience, we would argue that the practices of ECtHR promote learning, supporting attributes that are important for adaptive governance."
West, S. P., and L. Schultz. 2015. Learning for resilience in the European Court of Human Rights: adjudication as an adaptive governance practice. Ecology and Society 20(1): 31
Simon West’s research examines how social learning can be enhanced by deliberative governance techniques, how environmental knowledge is created and mobilized, and how different social constructions of environment affect management outcomes.
Lisen Schultz's work focuses on the role of bridging actors, who catalyze collaboration and learning across levels and sectors in adaptive co-management.
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