Questioning the meaning of environmental protection
Reflections on the Project of a Global Pact for the Environment
On June 24, 2017, a few months after the adoption of the Paris Agreement on Climate Change, an initiative entitled “Project for a Global Pact for the Environment” was presented at the Sorbonne University, chaired by the president of the French Constitutional Council Laurent Fabius and sponsored by newly-elected President Macron. This Project is a preliminary draft, destined to lay the foundations for the adoption of a multilateral treaty on environmental protection. The Project states in its first Article a “Right to an ecologically sound environment” for every person. While it may at first seem clear what this right means, a further look reveals that the Project fails to provide a definition and therefore uses a relatively vague concept as the basis for its reflection.
In order to add content to this “right to an ecologically sound environment”, we must not only adopt the subjective perspective of an individual right, but also focus on its objective counterpart, the concept of “environmental protection” because this is the ensemble of actions a society must perform in order to guarantee the “right to an ecologically sound environment”. There are many questions to ask: What does this concept mean? Which attitudes, which activities does this right include? Indeed, the efficiency of an international environmental treaty will rely considerably on a thorough interpretation of the meaning of “environmental protection”. This article examines the possibility of extracting such a definition from the text of the Project.
It is difficult to find a common denominator on the exact meaning of environmental protection on a global scale. This has profound implications for the negotiation of a multilateral treaty, which has the inherent aim to be universally binding. In order to get the largest possible approval by states, such a treaty must use a definition of environmental protection with a high level of abstraction. However, the central concept should not be too abstract – in that case, the articles of the treaty would have little to no practical meaning. Therefore, in order to define what environmental protection is on a global scale, an equilibrium between abstraction and precision must be found. For that purpose, an essential, philosophical and very abstract definition of the concept will first be presented . The underlying principles of this notion will then be extracted from the Project. Finally, the drafters’ propositions about particular environmental rights of citizens and some binding public policies will be analysed, as they shed light on the drafters’ conception of environmental protection.
Thus, I will try to present a holistic vision of what the drafters meant by the general “right to an ecologically sound environment” and show the difficulties we can expect in multilateral negotiations to establish a general consensus, in particular due to the uniquely Western perspective of the agreement.
An abstract definition of environmental protection
This first part aims to offer an abstract, philosophical definition of environmental protection, as basis for further interpretation. To begin with, the concepts of environment and protection should be considered separately.
In order to define the concept of environment, one should assume the existence of an ontological dichotomy between human-made, “artificial” reality and the given, “natural” aspects of the world. What we call “environment” is a part of the latter category, which includes all elements that surround us, and is not a product of human activity. This notion can also be called “nature”. In this definition, nature is a given ; it was here before us and we did not participate in its creation. It is perceived as inherently stable. The artificial sphere of reality is not given, but human-made. It includes any product of human activity. The natural and the artificial dimension of reality are intensively interrelated and interdependent, and there is no clear border between them. To understand this notion, one should think about agriculture: humans have a good knowledge of the given, “natural” properties and forces of some plants and deliberately canalise them in order to obtain nutrition. We see that both dimensions cannot be dissociated easily.
Moreover, “environment” does not encompass all of nature, but only the part which embodies the necessary conditions for human life. Agriculture for example shows that human life heavily relies on the maintenance of stable biological conditions on Earth. This is due to the fact that, tragically, human nature is a part of the “given” reality. We are a part of nature, but we have the ability to significantly alter our environment, right up to the point where we lose our living conditions. This power leads to the humanly-arrogant but methodologically necessary above-described dichotomy between nature and artificiality.
Protection means preventing the characteristics of the protected being from external influences. Here, as humans are the main influence for some radical disequilibria of the environment (besides meteorites and other extraterrestrial sources of change), the word prevention should be replaced by the word abstention. Protection, here, means the restraint of humans from altering the characteristics of the environmental equilibrium.
In this sense, environmental protection is the abstention of humans to alter the characteristics of the equilibrium of the dimension of reality which is not a product of human activity, but which is necessary for their survival.
Underlying principles of environmental protection
The above-mentioned definition is offered without pretending to a universal truth: it is the lowest common denominator for what environmental protection could imply on a global scale. It will be the common ground for all the concrete meanings that environmental protection may have in a particular situation. In order to approach a more precise and functional definition, we must explore general principles of environmental protection. These principles are the intermediate notion between the abstract definition and concrete actions that member States have to perform. The Project outlines three general principles.
First, environmental protection supposes a general attitude of prevention, which requires anticipating consequences of human behaviour that could influence the environmental equilibrium, and adopting the appropriate conduct in order to avoid those consequences. This principle is exposed in Article 5 of the Project: the drafters insist on the necessity of prior state-run environmental impact assessments for any action that “is likely to have a significant impact on the environment”. The text goes even further in Article 6, affirming that preventive measures should be taken even in the absence of a scientifically proven causal link between the action and environmental damage if “there is a risk of serious or irreversible damage”.
In case of a previously existing environmental disequilibrium, environmental protection includes the principle of remediation, which means, whenever possible, the restoration of the status quo ante. This principle is established in Article 7, albeit in very vague terms. One is entitled to wonder what “adequate remediation” is. Interpreting this notion gives States significant discretionary power. In any case, the principle of remediation is a premise for the realisation of “intergenerational equity” (Article 4).
The third essential principle outlined in the Project is the principle of personal liability, which means that the originator of environmental damages must pay for “prevention, mitigation and remediation” (Article 8). The principle is called “polluter-pays”. A few difficulties immediately appear with this principle. First, its efficacy is only assured if an environmental alteration can be attributed to an actor’s behaviour with certainty. The causal link can be difficult to establish, forcing such liability attributions to remain on the intersection of scientific and political concerns.
Moreover, it remains to be established which actors may be held liable for environmental damages. In the framework of international law, the classic question of international legal subjectivity comes up. Of course, States are the only actors who can bind themselves with a multilateral treaty. However, many other global actors have the power to cause significant environmental disequilibria, such as companies or armed militias. These actors have only an imperfect international subjectivity compared to states. Certainly, one could consider them as emanations of a state and could attribute their actions to a state (with significant difficulties, see Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC, 2001). Nevertheless, there are and there will be situations in which states have little power compared to companies or armed militias, in which case the attribution of an environmental damage to a state is nonsense. The questions of the relevant actor and the attribution of responsibility are not sufficiently taken into account by the Project, although Article 14 compels member States to “encourage the implementation” by non-State actors and subnational entities.
A democratic vision of environmental protection: Public policies and particular environmental rights for individuals
A further illustration of the concept of environmental protection can be found through an analysis of the concrete State actions that are suggested by the drafters. These actions include various binding public policies and the guarantee of specific environmental rights for citizens. They can be seen as both sides of the same coin: a binding public policy can create rights for citizens, and the guarantee of rights for citizens can create the need for new public policies. Therefore, all become particular aspects of the general concept of environmental protection.
Generally, it is at that point that the obligations of member States become specific, and are no longer merely declarative. Also, these policies can easily enter into conflict with interests of political or economic nature. Therefore, it is at this point (at the latest), that opinions will diverge the most. Moreover, a general rule of non-regression of the current state of environmental regulation is set out in Article 17. Member States may therefore not retract from environmental protection standards that they have already adopted.
The drafters have a democratic vision of environmental protection because citizens are seen as an active element of environmental protection. This may pose several specific implementation issues.
In particular, the Project insists on the right of member States citizens to have access to environmental information held by public authorities (Article 9). Likewise, the authorities have the duty to “collect and make available to the public” such information. “Environmental information” can be understood as any relevant information for the realization of one or several of the general principles of environmental protection. According to the drafters, the member States should enable the free circulation of such information by guaranteeing the freedom of expression and information, as well as by educating and training citizens in environmental matters (Article 12). These aspects are essential for individuals to be able to efficiently enjoy the right of public participation concerning activities “that may have a significant effect on the environment” (Article 10).
In addition, in order to claim their environmental rights, the drafters assert the need for the effective access to “administrative and judicial procedures” for individuals, termed environmental justice (Article 11).
Finally, in order to gather more information about how human behaviour impacts the environmental equilibrium, member States should “promote” research and innovation in environmental matters (Article 13).
It can be hypothesized that major difficulties will arise from this democratic vision of environmental protection. This does not mean that individuals should not have a decisive role to play in environmental protection – on the contrary, citizens’ individual actions are key to keeping and restoring an environmental equilibrium.
However, this approach is highly reliant on Western assumptions regarding the policy-making process, an assumption that has been a challenge for the UN is most recent negotiations. Many States essential to the adoption process do not have such a participative vision of public affairs. These States’ interests must be taken into account in order to reach an international consensus. It can be feared that the exposed vision of environmental protection is an inherently western one, and that it will be difficult to reach a consensus on those standards.
Should the “Right to an ecologically sound environment” be a human right ?
Since we have established that environmental protection is the effort by humans to refrain from altering the characteristics of the natural equilibrium, upon which their survival relies, and that this notion can be expressed through the three general principles of prevention, remediation and personal liability. Different subjective environmental rights can be derived from these principles; together they represent the essence of the “Right to an ecologically sound environment”.
A last question remains: is this right so fundamental that it constitutes a human right? The question is highly debated. The European Court of Human Rights developed a rich environmental case law, even without a literal textual foundation. Similarly, the EU Fundamental Rights Charter contains an objective obligation for the EU to take into account the necessities for environmental protection in its policies (article 37), but without defining a subjective “Right to an ecologically sound environment”. The United Nations Environment Programme (UNEP) speaks of a “safe, healthy and ecologically balanced environment” as a “prerequisite” for the enjoyment of human rights, without defining it as a human right itself. We can see that for the moment, this remains an open debate. However, a great hope is that a general consensus concerning a “Global Pact for the Environment” could close it – and define the “right to an ecologically sound environment” as a human right.
Law Review Editor
M1 – Economic Law Student