1 Introduction

A rights-based approach to the Earth system boundaries (Rockström et al., 2023) to ensure a safe and just operating space for civilization and humanity (Rockström et al., 2009) requires environmental action not only from within and across the United Nations (UN) but also from the civil society engaging in the democratic decision-making processes (Guterres, 2020). Civic engagement and legal accountability are among the core elements of the environmental rule of law. Hence, the activities of the environmental human rights defenders (EHRDs)—or the Earth defenders, a term used interchangeably in this article—, contribute not only to bridging the implementation gap between theory and practice but also to securing the social foundations of the planetary boundaries (Ensor & Hoddy, 2021; Raworth, 2017). Ultimately, the protection of the EHRDs serves the overall realization of the Sustainable Development Goals (SDGs), and particularly of SDG 16 on the promotion of peaceful and inclusive societies at all levels, which, targets, among others, the promotion of the rule of law; guaranteeing equal access to justice for all; developing effective, accountable, and transparent institutions; and ensuring responsive, inclusive, participatory, and representative decision-making processes (UNGA, 2017).

The Universal Declaration of Human Rights Article 29(1) and the Declaration on Human Rights Defenders Article 18 stipulate that everyone—i.e. individuals, groups, institutions and non-governmental organizations (NGOs)—has duties towards and within the society to promote human rights and to safeguard democracy, its institutions, and processes (UNGA, 2019). Accordingly, civic engagement may be considered not only as a right but also as an ethical responsibility (Merrigan, 2015) towards the community we live in and humanity in general, including future generations (UNESCO, 1997; Daes, 1983, paras. 245–7, 255–8, 273–4; Brems, 2001, pp. 426–8; cf. Saul, 2001).Footnote 1 However, challenging the traditional political, economic, social, and legal structures and inequalities requires fortitude and devotion (Nah, 2020). Defending the Earth may become a life-threatening occupation for people and societies, especially in the global South. Having said that, suppression of the activities of the EHRDs is not rare in the global North either (Forst, 2024).

This article aims to contribute to the literature on the protection of EHRDs by using Lawrence Lessig’s New Chicago School approach explained in Section. 2. Section 3 briefly assesses the current international legal framework on the rights of the EHRDs. Section 4 critically analyzes the constraining and protective modalities regarding the behavior of the EHRDs through the eyes of Lessig’s theory. Section 5 aims to bring a holistic and multi-dimensional approach to realizing the environmental rule of law and sustainable development by discussing the potential implications of legal regulation on culture, technology, and business relations. Section 6 concludes and brings recommendations for future research.

2 Methodology and conceptual framework

The article primarily uses a comprehensive literature review methodology together with an in-depth analysis of international legal texts, policy documents, and case law focusing on the protection of the EHRDs under international law highlighting the extra-legal influences of culture, technology, and market. The author aims to discuss the potential implications of strengthened legal protection of the EHRDs for the realization of the environmental rule of law while acknowledging the limits of legal regulation, which also lead to the implementation gap between the theory and practice of human rights law. The author does not analyze or generate any datasets, because the work proceeds within theoretical and legal approaches.

The overall theoretical and conceptual framework of the article relies on the New Chicago School approach—or the pathetic dot theory—. Unlike the old Chicago School praising the laissez-faire policies, the New Chicago School argues that legal interventions are necessary to achieve a safe and just social and economic order (Lessig, 1998, p. 661). According to this theory, four types of modalities, (1) the law, (2) the social norms (culture), (3) the architecture (natural phenomena, physical structures, technology), and (4) the market (price, financial rewards or sanctions) regulate the behavior of the individual, which is depicted by the pathetic dot in the center of Fig. 1 (Lessig, 1998, 1999a, 1999b, 2006).

Fig. 1
figure 1

Copyright © 2006 by Lawrence Lessig CC Attribution-ShareAlike 2.5

The behavior of the pathetic dot in the center is subject to legal, cultural, architectural, and financial regulation. From Lessig (2006). Code: Version 2.0. Basic Books, p. 123.

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While the law protects or restricts the rights of the EHRDs, directly, it also regulates the other factors—the social norms, the architecture, and the market—, and thus indirectly guards the EHRDs or constrains their behavior (Fig. 2; Lessig, 1998, p. 666).

Fig. 2
figure 2

Copyright © 2006 by Lawrence Lessig CC Attribution-ShareAlike 2.5

Legal regulation of culture, architecture, and the market purports indirect regulation of the pathetic dot. From Lessig (2006). Code: Version 2.0. Basic Books, p. 130.

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Finally, a regulatory endeavor in one of these modalities translates into a modification in the other modalities, in the end, affecting the behavior of the pathetic dot. In other words, a transformation in one of these modalities affects the other modalities either by empowering them or diminishing their influence (Fig. 3; Lessig, 2006, p. 123).

3 General protective legal framework

3.1 Definition

There is considerable debate in the literature on the meaning and scope of the term EHRDs (e.g. Nah et al., 2013, pp. 403–5; Fernández & Patel, 2015). The former UN Special Rapporteur on Human Rights Defenders defined the EHRDs as the individuals and groups—including local communities, indigenous peoples, minorities, academics, lawyers, judges, journalists, workers, trade unionists, and other NGOs—, who, “in their personal or professional capacity and in a peaceful manner, strive to protect and promote human rights relating to the environment, including water, air, land, flora and fauna” (Forst, 2016b, para. 7). According to this definition, the EHRDs shall be protected regardless of their self-identification as being an Earth defender. This article uses the term EHRDs broadly and inclusively to embrace all categories of individuals and groups accepting the universality of human rights, defending environmental rights, and carrying out peaceful activities (OHCHR, 2004, pp. 9–10). Bearing this definition in mind, the rights of the EHRDs are analyzed below.

Fig. 3
figure 3

Copyright © 2006 by Lawrence Lessig CC Attribution-ShareAlike 2.5

The four modalities simultaneously protect and limit the behavior of the individual. From Lessig (2006). Code: Version 2.0. Basic Books, p. 234.

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3.2 A quadruple classification on the rights of the EHRDs

The European Court of Human Rights (ECtHR) confirmed that the EHRDs should be considered as public watchdogs contributing to public debate, whose non-violent acts and expressions require a higher level of protection.Footnote 2 Keeping in mind that all rights are interdependent and interrelated, the rights of the EHRDs can be systematized under four broad categories: (1) The rights in general, (2) the right to freedom of opinion and expression, (3) the right to freedom of peaceful assembly and association, and (4) access rights. These categories are often intertwined. For example, demonstrations may be protected as a form of freedom of expression.Footnote 3 Other EHRD-related rights, such as the right to privacy, academic freedoms, and media freedom should be elaborated under the umbrella of this quadruple classification. For example, the right to freedom of opinion and expression covers the right to the lawful exercise of one’s occupation or profession (Fig. 4).

Fig. 4
figure 4

A quadruple classification of the rights of rights defenders*.

* Abbreviations used in Fig. 4: Aarhus Convention UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters; AfCHR African Charter on Human and Peoples’ Rights; AfCRWC African Charter on the Rights and Welfare of the Child; AmCHR American Convention on Human Rights; ArabCHR Arab Charter on Human Rights; ASEAN HRD; Association of Southeast Asian Nations Human Rights Declaration; Basel Convention Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal; CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; CEDAW Convention on the Elimination of All Forms of Discrimination Against Women; CRC Convention on the Rights of the Child; ECHR European Convention on Human Rights; Escazú Agreement Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean; EU Charter Charter of Fundamental Rights of the European Union; ICCPR International Covenant on Civil and Political Rights; ICERD International Covenant on Elimination of All Forms of Racial Discrimination; ICESCR International Covenant on Economic, Social and Cultural Rights; Kyiv Protocol Kyiv Protocol on Pollutant Release and Transfer Registers; Montreal Protocol Montreal Protocol on Substances that Deplete the Ozone Layer; Nagoya Protocol Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization; UDHR Universal Declaration on Human Rights; UNCBD United Nations Convention on Biological Diversity; UNCCD United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa; UNFCCC United Nations Framework Convention on Climate Change

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The EHRDs are protected by general human rights treaties, as well as the thematic ones. For example, child EHRDs are protected under general human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), and the thematic treaty Convention on the Rights of the Child (Lawlor, 2024; UN Committee on the Rights of the Child, 2023, 2024).

3.3 A special category: access rights

The rights of access to information, public participation in decision-making, and access to justice and remedy constitute the fundamentals of environmental governance and the rule of law (Rio Declaration on Environment and Development, 1992, Principle 10). Access rights are protected under various general human rights treaties, such as the ICCPR and the ECHR, and thematic environmental agreements, such as the UN Framework Convention on Climate Change (Fig. 4). Additionally, two regional treaties provide special protection for access rights in the context of environmental matters.

The first one is the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (hereinafter the Escazú Agreement).Footnote 4 The Escazú Agreement expressly obliges State Parties to “guarantee a safe and enabling environment” for the EHRDs, “so that they are able to act free from threat, restriction and insecurity” (Article 9(1)). However, the Agreement fails short of guaranteeing transboundary public participation in environmental decision-making processes recognizing this right only for the persons who are nationals or subject to the national jurisdiction of a State Party (Article 2(d); Stec & Jendrośka, 2019, p. 544). Furthermore, the Committee to Support Implementation and Compliance with the Agreement is a non-judicial consultative body authorized purely to make recommendations for safeguarding the EHRDs (Article 18; Tigre, 2024, p. 275).

The second regional treaty is the UN Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (hereinafter the Aarhus Convention). Despite the lack of an explicit reference to the EHRDs, the Meeting of Parties established a legally binding rapid response mechanism to protect the EHRDs, who are “affected or likely to be affected by, or having an interest in, the environmental decision-making” (Article 2(5)). The Special RapporteurFootnote 5 is authorized to receive confidential complaints regarding imminent threats of penalization, persecution, or harassment of the EHRDs, without a requirement for the exhaustion of domestic remedies (Article 3(8)); issue immediate or ongoing protection measures, public statements, and press releases; bring the matter to the attention of other human rights bodies; use diplomatic channels and communicate with the concerned State; and conduct awareness-raising activities (UNECE, 2021). Thus, it is rather a consultative mechanism effectiveness of which depends on State cooperation (Weber, 2023).Footnote 6

The European Union (EU), being a party to the Aarhus Convention, adopted an internal review mechanism under Regulation (EU) 2021/1767, allowing environmental NGOs to request the review of administrative acts or omissions allegedly contravening environmental law (Articles 10–11).Footnote 7 If the environmental NGO requesting the review is not satisfied with the outcome, it may initiate proceedings before the Court of Justice (Article 12).Footnote 8 The protection of the EHRDs has particular importance also within the context of the European Green Deal. For example, Regulation (EU) 2018/1999—referring to the Aarhus Convention and the Paris Agreement—establishes a governance mechanism aiming to ensure public participation in the national energy and climate plans and long-term strategies (Articles 1, 10) and to facilitate a multilevel climate and energy dialogue among all stakeholders (Article 11).Footnote 9 Similarly, the European Climate Law enshrines participation of all social partners, academia, the business community, citizens, and civil society in the processes at all levels towards enabling a just and socially fair transition to a climate-neutral and climate-resilient society (Article 9).Footnote 10 Access to reliable and scientific information on the impacts of climate change, including its social and gender equality aspects, is protected under the same provision.

4 The pathetic dot theory and the four types of protection and constraint

4.1 Law

The first modality regulating the behavior of the EHRDs is the law. In Lessig’s theory, the law may be used both as a shield and a sword for the pathetic dot (Lessig, 2006, p. 275). The relevant treaties, drafts, and soft law instruments (Table 1) and the related international supervisory mechanisms (Table 2) established to protect and strengthen civic engagement in environmental processes give a clearer picture of the current status of the protection afforded to the EHRDs under international law. In short, apart from the general protective framework (Fig. 4) there is no internationally binding treaty focused on the rights of the EHRDs, while the efforts for establishing regional protection mechanisms analyzed in Sect. 3 are inspiring. This Section aims to bring a more focused analysis of the potential for a special legal protective scheme for the EHRDs.

Table 1 Relevant international instruments on the protection of the EHRDs
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Table 2 Relevant international mechanisms for the protection of the EHRDs other than the international courts and UN treaty bodies
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National legislation and its effective implementation are essential for the protection of the EHRDs and the environmental rule of law.Footnote 11 In a democratic society, the laws, which are clearly defined, accessible, and foreseeable, should be enacted through transparent and participatory processes. Legal compliance of these laws—in form and substance—with international human rights standards should be reviewed by independent and impartial judicial organs.Footnote 12 The accountability of the perpetrators, whether State officials or non-state actors, should be guaranteed under domestic legal mechanisms and a culture of impunity should be prevented. The States should guarantee access to justice and effective remedies for the victims. The EHRDs should be protected from physical and judicial threats, such as arbitrary arrest and detention, criminalization, stigmatization, marginalization, harassment, intimidation, violence, and reprisals (OSCE/ODIHR, 2014, paras. 48, 131; Knox, 2018, Framework Principle 4). This duty includes taking preventive and remedial measures against the threats and attacks coming from non-state actors, particularly corporations.

For example, strategic lawsuits against public participation (SLAPP)Footnote 13 have been frequently used by corporations to target climate defenders via civil litigation, in which they claim millions of dollars for damages allegedly caused by non-violent protests and legal direct action (Finchett-Maddock, 2013; Voule, 2021, paras. 33, 84). Passing anti-SLAPP legislation, envisaging early-dismissal mechanisms and remedies for the EHRDs, and abolishing lèse-majesté laws, are among the means to protect the EHRDs against judicial harassment (e.g. UNHRComm, 2011, paras. 29–30; UNGA, 2022, para. 99(k)). On the regional level, an EU Directive is adopted to safeguard the EHRDs against SLAPPs with cross-border implications. The Directive covers SLAPP cases relevant to more than one EU Member State or have been initiated in more than one EU Member State or third-country jurisdictions.Footnote 14 Another Directive extends the protection scheme for the whistle-blowersFootnote 15 to the EHRDs, who report, provide evidence, or otherwise cooperate with the investigation, prosecution, or adjudication of environmental crimes, in accordance with national law.Footnote 16

On the international level, Fry suggests the inclusion of crimes committed against the EHRDs in the definition of “ecocide” (2022, paras. 94–99). However, as Boyd emphasizes, due to the corporate capture phenomenon—i.e., the disproportionately high and effective access of corporate elites to governmental policymakers—such criminalization may face strong opposition leaving the Earth defenders underrepresented and unprotected (Boyd, 2023, paras. 31–33, 64, 73). This phenomenon may also prevent the adoption of mandatory requirements for businesses as the EU witnessed in the failure to adopt the comprehensive proposal for a Directive on Corporate Sustainability Due Diligence (CSDDD) in March 2024.Footnote 17 Nevertheless, the UN Guiding Principles on Business and Human Rights (UNGP) highlight that the effective protection of the EHRDs requires States to remove legal, procedural, and practical barriers that could lead to a denial of access to remedy and ensure that “courts are independent of economic or political pressures from other State agents and from business actors” (UNGP 26, Commentary).

4.2 Social norms (Culture)

The second modality regulating the behavior of the pathetic dot is culture. Culture has various forms and meanings in everyday use. From an individual-oriented point of view, an individual’s—and EHRD’s—cultural equipment, such as language, education, know-how, and other skills, potentially facilitates the effective enjoyment of their rights and freedoms, and vice versa (Almqvist, 2005, p. 49). From a societal standpoint, culture is a set of shared attitudes and values—or a social belief system sometimes having the material traits of racial, religious or social groups (Merriam Webster, https://www.merriam-webster.com/dictionary/culture)—imposing predetermined rules of behavior and desired postures on persons and organizations (Frankel & Braun, 2021, p. 157, 161).

Cooperation, solidarity, and networking are among the components of the cultural superstructure, which plays a consequential role in the efficient enjoyment of participation rights, for example, by catalyzing social opposition movements representing multifarious subcultures and alternative cultures (Frankel & Braun, 2021, p. 158, 163). The citizen’s assemblies, such as the Climate Assembly UK and the French Convention Citoyenne pour le Climate, are among the examples of reflexive environmental governance practices and deliberative mini-publics contributing to public participation (Dryzek & Pickering, 2017; Willis et al., 2022). The modes and methods of resistance, such as the Fridays for Future movement, are also closely linked with culture (Jasper, 2014).

Conversely, culture may dissuade the EHRDs from enjoying their participation rights. For example, in some cultures, contradicting the State policies or bringing claims against the State may—implicitly or explicitly—be considered as “betrayal”, and the EHRDs may be labelled as “traitors”, “spies”, “extremists”, or “eco-terrorists” (Balgimbekova et al., 2022, pp. 631–2), which may eventually result in arbitrary arrests or physical attacks against the EHRDs (PACE Resolution 1660/2009, para. 4). The limits of legal tolerance towards the EHRDs also vary among cultures, societies, and even the judges, which sometimes lead to incoherent or controversial judgments in domestic courts. There may even be traditional and informal justice systems based on custom or religion (UNGA, 2012, para. 23). As Steiner puts it, the human rights treaties protect cultural particularism and diversity whilst paying little attention to removing the traditional and cultural obstacles faced by the EHRDs (2020, p. 28). In that regard, the longstanding discussions on cultural relativism versus the universality of human rights (Rajagopal, 2003, p. 207; Donnelly, 2007; Winston, 2007) come back into the scene concerning the protection of the EHRDs.

Going one step further, cultural, moral, political, and legal inconsistencies even in European countries, who share a common heritage of spiritual and moral values and devote themselves to the rule of law principles (Statute of the Council of Europe, Preamble), have led the judges of the ECtHR to embrace the doctrine of margin of appreciation (Sweeney, 2005). However, the doctrine has been widely criticized for undermining the universality of human rights (Benvenisti, 1999; Kratochvíl, 2011) and sometimes for being an empty rhetorical device (Gerards, 2018). Other scholars praised the doctrine as a pragmatic legal tool (McGoldrick, 2016) helping to reconcile universality and diversity within the limits of the international rule of law (Legg, 2016, p. 266), and allowing the States to adopt diverse policies on new, sensitive, or controversial human rights issues.Footnote 18 In such areas, strategic human rights litigation as a model of activism may catalyze public debate, consolidate collective memories, and contribute to the realization of the environmental rule of law by reframing issues of public concern and influencing cultural attitudes towards the Earth defenders (Duffy, 2018, pp. 72–4).

4.3 Technology

The third modality impinging on the pathetic dot’s behavior is architecture (Lessig, 1998, p. 663, 665). The closure of city centers to the demonstrators; creating permanent protest-free zones (Moeckli, 2016, p. 96); routing them to locations out of the public eye and turning the protests into ineffective gatherings; using chemical irritants (i.e., tear gas and pepper spray), kinetic impact projectiles (i.e., rubber bullets), electrical weapons (i.e., tasers), and water cannons to disperse peaceful demonstrations reflect some examples of architectural (physical) constraints confronted by the EHRDs. Technology also constitutes an architectural modality affecting the EHRDs (Lessig, 1998, p. 675). For instance, the preference for green technologies in industry and commerce can potentially prevent conflicts with the EHRDs, ultimately safeguarding their rights. Yet, the unlawful or unethical uses of technology, especially in the artificial intelligence (AI) zeitgeist, would hamper the protection of the EHRDs, degenerate the fundamental principles of democracy, and backslide the environmental rule of law. This section briefly elaborates on the impacts of technology on the EHRDs.

Technological advancement serves the EHRDs. First, it reduces barriers to access to environmental information (Whittaker et al., 2023, p. 187; Aarhus Convention, Article 5(3)). For example, satellites, drones, and earth observation technologies may be used for tracking compliance with environmental laws (UNEP, 2023, p. 21). Second, it facilitates communication, organization, information sharing, and cooperation of the EHRDs (UNHRC, 2021, para. 108). Digital infrastructures, including social media platforms, are used for receiving and imparting information and ideas, especially when environmental campaigns and demonstrations do not find publicity in the mainstream media. Furthermore, social media, itself, is used as a space for online protests. Thus, digital technologies contribute to the achievement of the environmental rule of law also by facilitating public participation and scrutiny in environmental matters.

Yet, the profit-oriented transformation of big techs has diminished the pivotal role of digital platforms in awareness-raising and triggered calls for digital constitutionalism (Celeste, 2023; Sander, 2021). The practices of digital authoritarianism, such as content moderation, data surveillance, internet shutdowns, bandwidth restrictions, geo-blocking, algorithmic control of cyberspace, State-aligned trolling, microtargeting campaigns, harassment, anti-human rights speech, and disinformation are among the constraining factors impacting the behavior of the EHRDs (Wilson, 2022, p. 706, 722–3). State-led censorship practices, State acquiescence in third-party acts, and self-censorship due to the fear of digital and/or physical attacks interfere with the right to freedom of expression and the right to information, especially when the targets are journalists/citizen journalists.

Moreover, the use of machine learning and AI, on the one hand, benefits the public by preventing the spread of disinformation, and hate speech, for example, via fact-checking tools, such as iVerify.Footnote 19 On the other hand, since AI tools are also capable of catalyzing targeted disinformation and misinformation, they may cause democratic impediments. The use of big data and algorithmic risk assessment tools trained by biased datasets for profiling internet users—e.g., based on their social media interactions or use of public transportation—, which aim to create databases of potential protestors or EHRDs, jeopardizes, among others, the principles of non-discrimination and non-arbitrariness (Murray & Fussey, 2018) and the right to privacy.Footnote 20 The emergence of high-functioning mobile robots, such as robot police dogs, adds to the AI-related privacy, transparency, and accountability concerns. The corporate ethical codes, such as Boston Dynamics Ethical Principles, adopted against the weaponization of general-purpose robots do not imply a ban on manufacturing special-purpose weaponized or autonomously targeting mobile robots (McCullom, 2023). This should also be considered as a threat to the EHRDs, particularly if such robots are used by non-state actors against them.

4.4 Market

In Lessig’s theory, the market regulates the behavior of the pathetic dot via price. Respecting or disregarding environmental and social rights requires companies to make cost–benefit analyses (von Moltke, 2002, p. 348). As Bratspies argues, the discourse on green economy does not question the economic model and treats the planet as a supply of goods and services (2013, pp. 299–300). The laissez-faire approach of economic liberalism and the business-as-usual leave the Earth and its defenders without protection while neglecting the true price of the economic activities, which incorporates environmental and social costs (True Price Foundation, n.d.).

Still, various extra-legal factors affect the market priorities and the final price for products and services, which involves hidden costs. For example, if the international financial institutions (IFIs) and investors act in consultation with the affected communities and the EHRDs in funding the development projects, they would contribute to the efforts for improving the environmental rule of law (Forst, 2016b, paras. 89–91). The ambition and sustainability concerns of shareholders may compel corporations to act in line with the responsible business guidelines and environmental, social, and governance (ESG) standards. Responsible investment tools, such as sustainable bonds, green bonds, and climate bonds similarly urge corporations to self-regulate and adopt policy documents steering the corporate activities towards sustainable practices. Adding to these, the activists’ campaigns may force companies to commit to their ESG undertakings due to the risk of reputational damage of growing public reaction and its potential financial repercussions, such as disinvestment or consumer boycotts.

The other modalities in Lessig’s theory also interact with the market. For example, Cao emphasizes that culture influences the economic circumstances and market policies of a country (2016, pp. 200–26). Also, the dominant corporate governance culture prioritizing short-term shareholder wealth maximization overlooks the long-term stakeholder interests (Lund & Pollman, 2021, pp. 2567, 2602–9; Choudhury, 2023, p. 183). Corporate practices focused on profit-maximization may undermine cultural development, particularly of vulnerable groups such as indigenous peoples (Deva, 2023, paras. 57–61). Conversely, meaningful engagement with the affected populations would potentially create opportunities for learning from their traditional practices, cultures, and knowledge that serve the proper management of the local environment (Maastricht Principles on the Human Rights of Future Generations, 2023, para. 11(a); Chinweze et al., 2013).

Finally, the integration and the use of smart technologies, such as cloud computing and the Internet of Things would ease tracking the commercial relationships, and facilitate communication with and among all affected stakeholders. Digitization and digitalization in trade could catalyze exponential compliance with the ESG standards throughout the value chain via the digital twins of trade networks (Mascher, 2023). Effective AI use by corporations would potentially boost international trade and competition and contribute to research and innovation. For example, AI can be used in developing eco-friendly technologies, such as generating new forms of energy. The advanced technologies of Industry 4.0 would also facilitate corporate transparency and human rights accountability in the international commercial system, where businesses are organized as glocal networks (Oral, 2022, p. 107).

5 Realizing the environmental rule of law through the lens of the New Chicago School

Although the concept of the rule of law can be traced back to ancient history (Tamanaha, 2004), the term “rule of law” (Fr. prééminence de droit) and its modern use originates from the common law systems as a principle implying the supremacy of Parliamentary laws, which constrain the power of Reign over individual freedoms (Dicey, 1885, 10th ed. rep. 1979). It encompasses the continental (civil law) principle of état de droit—or Rechtstaat—, which requires the laws and administrative acts to be clear, accessible, foreseeable, and in line with human rights standards, compliance of which is subject to review by independent and impartial courts to prevent the abuse and misuse of power (Postema, 2022, p. 7; Bingham, 2011, Chapter 7). The European Commission for Democracy through Law (Venice Commission) defines the rule of law in this “thick” sense so as to embrace substantive and procedural rights interpreted towards a societal transformation where democracy and human rights are protected (2011, para. 41; Bedner, 2018; cf. Raz, 2009; Tamanaha, 2004). The Commission emphasizes that the rule of law “can only flourish in a country whose inhabitants feel collectively responsible for the implementation of the concept, making it an integral part of their own legal, political and social culture” (2016, para. 43).

Accordingly, this article understands the environmental rule of law as a principle of public and private governance, which implies the legal accountability and integrity of all actors, whether public or private (McCorquodale, 2016), responsible for environmental protection and sustainable development under fair, clear, strict, enforceable, and effective environmental laws that are consistent with international human rights obligations (IUCN, 2016; UNEP, 2013, 2019). It goes hand-in-hand with the principles of supremacy of law, equality before the law, legal certainty (cf. Ebbesson, 2010), avoidance of arbitrariness, separation of powers, public participation in decision-making, and procedural and legal transparency and accessibility (UN Security Council, 2004, para. 6). Put simply, environmental rule of law is the implementation and enforcement of the principles of the rule of law in the field of environmental law (Kreilhuber & Kariuki, 2020, pp. 592–3; Sulyok, 2024; cf. Wright, 2019, p. 18; Chesterman, 2008).

In Sect. 4, the impact of the four modalities of the New Chicago School on the behavior of the EHRDs is elaborated. However, as explained in Fig. 2, the law has the power and authority to regulate the other three factors, as well. Accordingly, the realization of the environmental rule of law requires a comprehensive legal approach covering social, technological, and economic improvements and reforms, which are discussed in the following sub-sections.

5.1 Legal regulation of culture

Culture directly affects the legal systems both in form and substance. Ergo, the laws mirror the customs and morals of the society (Ewald, 1995, pp. 492–6; Tamanaha, 2001, pp. 41–5). Some authors even understand “the rule of law” as a social practice that merges the society’s belief system into law through authority and representation (Kahn, 1999, p. 36). Some others approach the law as culture (Mezey, 2001, p. 55 et seq.; Rosen, 2006; Mautner, 2011). This interaction between law and culture is frequently scrutinized by legal sociologists and comparative law scholars (Cotterrell, 2006, p. 128; Jouannet, 2006; Gisler et al., 2012).

Lessig’s theory demonstrates that laws can maximize the effect of culture by implicitly favoring traditions that undermine human rights or minimize it by providing special protection for vulnerable individuals or groups who are socially oppressed. Thus, legal protection is crucial in shaping the formal and informal forms of public participation in environmental governance (Akerboom & Craig, 2022; Steele, 2001). One good example is Sect. 17 of the Model Law for the Recognition and Protection of Human Rights Defenders, which envisages that the right to the unhindered exercise of cultural rights and to work as human rights defenders, include “the right to challenge and change traditional customs and practices that violate human rights and fundamental freedoms”.Footnote 21 The Model Law excludes morality as a legitimate aim for limiting the rights, especially the rights of women and other defenders who challenge “‘traditional values’ or practices”.Footnote 22

Culture also affects the treaty interpretation and implementation in domestic laws and policies causing a “slippage” between the intention of the drafters and national practices (Mezey, 2001, p. 58). Friedman defines legal culture as “the network of values and attitudes relating to law, which determines when and why and where people turn to law or government, or turn away” and argues that the gap between theory and practice is a consequence of the legal culture (1969, pp. 265–7; also Cotterrell, 2006, p. 83 et seq.). Accordingly, legal culture hints at the degree of proper implementation of human rights treaties, and hence on the level of democracy and respect for the rule of law in a country (UNHRC, 2021, para. 31).Footnote 23

From another perspective, legal reforms in one legal culture may inspire and encourage similar transformations, or even the adoption of more protective laws in other countries by way of legal transplants (Whittaker, 2017, p. 529). Such legal transplants may be introduced by the legal and political elites of a country (Watson, 1985, p. 28, 110, 117). Affolder argues that environmental laws are particularly contagious, in the sense that they travel to various countries despite apparent diversities in legal and cultural traditions (2019, p. 192, 205). Nevertheless, even if transplanted from another jurisdiction, the laws would be translated, interpreted, and implemented in line with the local realities, religious tenets, cultural practices, and political ideologies dominant in the adopting society (Merry, 2006; Watson, 1993, p. 27, 116; Steiner, 2020, p. 28). Thus, the legislative protection afforded to the EHRDs may not be capable of preventing the social consequences, such as stereotyping, stigmatization, or other forms of social harassment of activists in a certain neighborhood or even across the country.

Another example that proves to be problematic is the stance against the right of the EHRDs to access international funding. Even in the absence of a legal regulation or prohibition, the language of politicians labelling the EHRDs receiving foreign funding may lead to the stigmatization of environmental NGOs and journalists in some cultures. For instance, the Russian Foreign Agents Act required domestic NGOs to register as “foreign agents” if they received foreign funding for their political activities. The ECtHR held that due to the vagueness of the concepts of “political activity” and “foreign funding”, the practice of the State authorities was not foreseeable and the issuance of administrative fines against the applicant NGO violated Article 11 of the ECHR.Footnote 24 The Court added that the wording “foreign agent” had negative connotations in Russian society, and thus had been used in smear campaigns run by the government to label and target, for example, the environmental NGOs, in the media for conducting “industrial espionage funded by the US money” (Ecodefence and others v. Russia, para. 128; Kriener, 2022). Similar laws can be found in other jurisdictions (Baldus, 2019).

5.2 Legal regulation of technology

The laws and policies restricting the architecture—i.e., the physical devices, tools, methods, and media—used by the EHRDs may have substantial adverse impacts and a chilling effect on their activities. However, proportionate legal interventions may be necessary to protect the rights of others or other legitimate interests described by law. New forms of activism—such as direct, collective, and disruptive climate protests, where controversial tactics of “locking on” or “paint smearing” are used—have led to the adoption of harsher laws and policies, including imposing heavier fines and penalties, making mass arrests, and criminalizing the protests and acts of civil disobedience (Forst, 2024; Lakhani et al., 2023; Valcke, 1994). For example, possessing or carrying the “dragon’s den” devices used by the protestors for chaining themselves to railways or roads to block traffic, is banned in Australia (Edgar, 2018; The Guardian, 2019).

The misuse and abuse of cyber technologies may constitute a digital barricade for the EHRDs. Conversely, liberal and democratic laws and practices facilitating the enjoyment of these rights create a shield for the EHRDs ensuring their alliance in strengthening the environmental rule of law. The traditional surveillance techniques, such as setting cameras on the streets and recording the demonstrations, combined with AI-assisted digital surveillance for location tracking, and biometric identification—e.g., facial and emotional recognition—may have a dissuasive effect on the EHRDs (UNHRComm, 2020, paras. 62, 99; UNHRC, 2022, Preamble, para. 29; Voule, 2021, para. 85; Glukhin v Russia, No. 11519/20, 04.07.2023). Nonetheless, recording of the demonstrations by the journalists, videographers (Meis, 2022), and the participants themselves should be secured by law (UNHRC, 2022, paras. 14, 27), because it also serves as a protective tool for the EHRDs, for example, by deterring the police from being “heavy-handed” or by helping to identify those who used disproportionate force.

The EU Artificial Intelligence Act, which aims, among others, to protect democracy, the rule of law and environmental protection (Article 1), acknowledges that the real-time remote biometric identification in publicly accessible spaces for law enforcement purposes is particularly intrusive in the rights of persons and it indirectly dissuades the exercise of the freedom of assembly and other rights (Preamble, para. 32). Thus, the Act prohibits real-time remote biometric identification systems for having an “unacceptable risk” with three law enforcement exceptions: targeted search for specific potential victims, prevention of a specific, substantial, and imminent threat to the life or physical safety of persons or a genuine and present or foreseeable terrorist attack, and detecting a suspect or perpetrator of a criminal offence listed in Annex II, which is based on the Council Framework Decision on the European Arrest WarrantFootnote 25 and punishable with a maximum period of at least four years of prison sentence (Article 5(h)(iii)).Footnote 26 Other practices of real-time or post remote biometric identification are categorized as having a high risk, which may be allowed only with the use of a risk management system in compliance with human rights protected under the EU Charter of Fundamental Rights (Articles 6, 9, Annex III).

Protecting the data privacy and anonymity of internet users is also crucial for the EHRDs. Surveillance requests by governments should be rejected if they do not meet the criteria of legality, legitimacy, necessity, and proportionality (For business responsibilities see Sect. 5.3). Such requests should only be based on a reasonable suspicion that that person is or will be involved in the commission of a serious crime, and the surveillance should be accompanied by judicial supervision. Legal protection of neural data and mental privacy is also essential to prevent the exploitation and manipulation of the public by governments, corporations, hackers, and others (Yuste et al., 2017). The EU Artificial Intelligence Act categorizes emotional recognition systems as a high-risk activity and do not ban them.Footnote 27 Mercenary spyware technologies, such as Pegasus and FinFisher, used without borders by both authoritarian and democratic regimes (Deibert, 2022) should be considered among the technological constraints for the EHRDs.

Finally, the security technologies and advanced crowd and riot control technologies, such as long-range sonic weapons, heat-ray energy weapons, and speech jamming should be thoroughly and independently tested before their use and if they fail the test of reliability, States should refrain from their deployment, use, export, sale, or transfer (UNHRC, 2022, paras. 23–24, 30). Furthermore, States should adopt architectural and technological protection measures for the EHRDs against threats from non-state actors. For example, they could equip the EHRDs with protective tools such as new cellular devices or satellite phones, bullet-proof vests, armored vehicles, and alternative identity documents; or ensure home safety and travel assistance—e.g., by assigning security officials—; provide cyber security advice and support—e.g., on encryption, pseudonymization, and VPN use (UNHRC, 2022, para. 32)—; guarantee legal, financial, and psychosocial assistance (Section of Annexure I of the Model Law for the Recognition and Protection of Human Rights Defenders); facilitate the visa and residency application procedures, particularly in the EU; and provide socio-economic support for the EHRDs in third countries (Guild et al., 2023).

5.3 Legal regulation of market

As explained in Sect. 4.4, the market’s cardinal tool for regulation is price. Market dynamics are influenced by the social, economic, and environmental policies of States. When the law intervenes in commercial relationships, the cost–benefit analysis of corporations adjusts accordingly, resulting in a modified price policy. The legal regulation of the market may be in the form of taxes or incentives, or civil, administrative, and criminal sanctions (or fines). The carrot-and-stick approach in legal policies, such as the incentives for eco-friendly technologies or the green—or carbon—taxes imposed on corporations, would ultimately spark changes in corporate practices towards sustainability. For example, Boyd recommends the introduction of windfall taxes on fossil fuel corporations and an Earth-damage tax for luxury products (2023, para. 71). In short, States should proactively prevent businesses from interfering with the enjoyment of the rights of EHRDs and guarantee the accountability of perpetrators violating human rights. They should adopt appropriate legislative, administrative, budgetary, judicial, and other measures for inclusive, equitable, and sustainable development.

Businesses, including technology and media companies, private security services, funds—whether state-owned or private—, and IFIs, such as development banks, commercial banks, credit rating agencies, investors, and insurance companies (Galaz et al., 2018) also have responsibilities to respect human rights and the environment. They should comply with national laws and policies only if they are in line with international human rights standards. Holding them accountable before international public or private grievance mechanisms would strengthen the environmental rule of law (Ong, 2016). For example, the IFIs, who voluntarily adhere to the Equator Principles (2020), undertake to assess and manage the environmental and social risks of the large-scale development projects they finance; to evaluate the effectiveness of their clients’ stakeholder engagement processes, in a structured and culturally appropriate manner (Principle 5); and to report annually to the Equator Principles Association for contributing to the knowledge-transfer and the development of best practices. Yet, the IFIs adhering to the Equator Principles operate only in high-income countries of the Organisation for Economic Co-operation and Development (OECD), while the IFIs in non-OECD countries tend to favor national laws over international human rights law (Forst, 2017, para. 56). Thus, the voluntary Principles are not effective in preventing the unsustainable business practices.

The mandatory human rights due diligence (HRDD) laws and ESG regulations would contribute significantly to assessing the environmental and social risks of the projects funded and invested in by the IFIs. The HRDD laws, which require businesses to identify, cease, prevent, and mitigate actual and potential adverse human rights and environmental impacts they cause, contribute to, or are directly linked through their subsidiaries and other established business relationships, would regulate and transform the corporate behavior to become in line with the ESG standards. The inclusion of protective provisions for the EHRDs in the HRDD laws would empower the Earth defenders both nationally and transnationally. In that regard, the EU CSDDD, which requires effective engagement and consultation with the stakeholders and NGOs, and endows them with the right to submit complaints before the mechanisms within the corporations, should be welcomed having an explicit reference to the EHRDs.Footnote 28

In the absence of mandatory HRDD laws, the companies should develop their own HRDD tools and policies for their activities, including by learning from the best practices in their industry or other sectors (UNGP 15, 18; UNHRC, 2019, paras. 21, 23; UNGA, 2018, para. 94; McCorquodale et al., 2017). HRDD policies should require corporations to ensure a direct, mutual, meaningful, and constructive consultation process with the actual and potential affected individuals and communities (Buhmann, 2021, p. 224), as well as with the EHRDs, both before and during the activities and projects.

As the updated OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (2023) stipulates, enterprises should consider adopting additional standards to address the adverse impacts of their activities on the EHRDs, who might be at a heightened risk due to marginalization and vulnerability (Commentary on Chapter IV, para. 45). For this purpose, corporations may establish internal mechanisms, where all affected stakeholders enjoy their access rights, or consult independent credible expert opinions, including the EHRDs and others from civil society (UNGP 18, Commentary). HRDD should also involve clear guidance and transparent procedures for receiving complaints, responding to them promptly, tracking the responses, and explaining the preventive and remedial measures taken to address the adverse impacts of corporate activities (e.g., Forst, 2016b, paras. 76, 105). Lastly, the self-regulatory business policies should be applied throughout their value chain regardless of the territories and/or jurisdictions the corporations operate.

Adding to that, businesses may leverage the protection afforded to EHRDs in host states by bringing the cases of violation perpetrated by government officials and police to the attention of the State. The UNGP 18 encourages businesses to consider collective leverage approaches, including disengagement from a business relationship within the value chain, to be adopted by companies operating in a particular country if they face systemic human rights violations. The Draft Business and Human Rights Treaty refers to the important and legitimate role of the civil society actors, including the human rights defenders, in “promoting respect of human rights by business enterprises, and in preventing, mitigating and seeking effective remedy for business-related human rights abuses” (2023, Preamble para. 13).

Finally, States should provide the EHRDs with the necessary information for the enjoyment of their rights to the full extent; empower and encourage them by recognizing the importance and positive effects of their work on democracy, the rule of law, and sustainable development; train government officials on the legitimate role of EHRDs (Forst, 2016a, para. 113); and adopt a zero-tolerance policy towards perpetrators victimizing EHRDs (Fig. 5).

Fig. 5
figure 5

Realization of the environmental rule of law and interaction among all actors and stakeholders

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6 Final remarks and future research

One of the tools to strengthen ecological democracy and environmental sustainability is to effectively protect the EHRDs serving as public watchdogs. The exclusion of the EHRDs from policy-shaping and decision-making processes and violations of the right to freedom of expression, the right to freedom of peaceful assembly and association, and the right to access to justice cause the deterioration of the environmental rule of law. As Armeni and Lee emphasize “law cannot guarantee ‘good’ participation” (2021, p. 566). Nevertheless, the law should empower civil society and safeguard minimum standards for effective and meaningful public participation, which could then transform the traditional governance cultures and practices towards democratization (Hammond, 2020; Zaharchenko & Goldenman, 2004). In the end, legal regulation would ensure accountable, transparent, and good environmental governance.

The law may also be used as a tool to restrain the rights of EHRDs and pave the way for the decay of the environmental rule of law. Strict or retrogressive interpretation of substantive laws carries the risk of oppressing civil society, for example, by limiting the right to peaceful assembly without properly balancing the legitimate aim to protect public order. This fact is also one of the underlying reasons of arbitrariness frequently observed in fragile or wounded democracies, where some norms are strictly applied for a certain part of the population, while not becoming a ground for prosecution for the other part. Thus, procedural justice for the EHRDs should also be guaranteed.

The Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises titled “The Guiding Principles on Business and Human Rights: Guidance on ensuring respect for human rights defenders” stresses that a cultural shift is needed “within both States and businesses to see defenders as essential allies in protecting people and the planet and not as enemies” (UNHRC, 2021, para. 33). This cultural shift can be triggered by States enacting progressive legal regulations in line with the recommendations discussed in this article. For example, imposing mandatory due diligence obligations on corporations to be implemented throughout their value chains and collaborating with all stakeholders in developing training programs for State officials and the public are among the tools that may facilitate a cultural green reform.

Technological developments also have transformative effects on the law, society, and market. Strengthening the local, national, regional, and supranational enforcement mechanisms via international commitments concerning coordination and mutual legal assistance in overcoming the systemic violations perpetrated against the EHRDs in the context of transnational activities of corporations and other non-state actors (Forst, 2016b, paras. 87–88); adoption of a legally binding treaty to regulate the international human rights obligations of transnational corporations and other business enterprises, which should involve special protective provisions for the EHRDs; popularizing the idea of benefit corporation,Footnote 29 would be further steps towards not only achieving the targets of SDG 16 on peace, justice and strong institutions but also to strengthen the means of implementation and revitalize the global partnership for sustainable development (SDG 17).

The global North, being home to most of the corporate giants, including the big tech, has the power, experience, and tools to influence the laws, culture, and technology of the other countries. Accordingly, they should act ambitiously in protecting the EHRDs and regulating corporate behavior extra-territorially via value chain laws, without leaving it to market-based regulation. Future research making comparative studies pertinent to the impact of law, culture, technology, and market on the protection of EHRDs would help the international community and the global civil society to understand the methods and best practices, which may strengthen the rule of law and bridge the gap between the theory and the practice.