ASSEDEL organized a webinar on the protection of environmental law and international mechanisms on December 1st at 7:30pm.

The speaker Julien Vieira is a lawyer at the Bordeaux bar, he holds a doctorate in law, and he is a member of the Bordeaux Institute of Environmental Law. He wrote his doctoral thesis on eco-citizenship and environmental democracy.

Mr. Vieira began his presentation with the origins of the right to the environment.

The right to a healthy environment is often referred to as a 3rd generation right. (1st generation: right to freedom, 2nd generation: economic, social and cultural rights).

The oldest text recognizing the right to a healthy environment is an international law text adopted at the World Conference on the Environment (Stockholm, June 1972). “Man has a fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.

Our interlocutor explains that international and domestic law have elevated the right to a healthy environment to the status of a fundamental freedom.

We learn that Africa is defined as the pioneer region of the right to the environment. The African Charter on Human and Peoples’ Rights (1981) is the 1st international treaty to recognize this right as a collective right (article 24) and is protected by the African Court on Human and Peoples’ Rights (1998).

In America, Article 11 of the Additional Protocol to the American Convention on Human Rights (1999) provides that everyone has the right to live in a healthy environment and to benefit from essential public facilities.

In Europe, the Aarhus Convention (1998) provides the most extensive and explicit protection of this right, which is linked to the procedural rights of information, participation and access to justice.

He adds that the sources of the right to the environment are multiple, and the protection mechanisms are diverse: national law, international law, European Union law.

  • In the EU, we have Council of Europe (CE) law: the Council of Europe’s regional European environmental law. The European Convention on Human Rights and the European Court of Human Rights are the high points of CE law and play an important role in the construction of European environmental law. The EC is a precursor in the construction of this right (Water Charter, Declaration of Principles on Air Pollution Control (1968), Soil Charter (1972). We therefore have a series of Treaties, which are extended by resolutions of the Committee of Ministers and various Action Plans.
  • The ECHR’s activity: the European Convention on Human Rights was originally silent, because there would be nothing to protect the environment. The ECHR has nevertheless had to base itself on this text but has also relied on other texts such as the Aarhus Convention. The ECHR thus forged a body of case law based on the articles of the Convention, but also on the Citizens’ Rights relating to information, participation (decisions) and access to judges (legal diversity).

According to the Strasbourg judge, the right to the environment is an integral part of the right to life. States would have a positive obligation to take the necessary measures to protect the lives of people under their jurisdiction.

Moreover, there are some fairly fundamental rulings on the subject:

  • Öner YILDIZ v. Turkey (18/06/2002): is demonstrative here because, according to the Court, the inappropriate activity of a landfill causing the death of local residents results in damage to the environment of the victims, and is therefore a violation of the right to life.

(The actions recommended for this decision include informing the public about the environment, and introducing regulations governing the operation, safety and control of hazardous activities, taking into account the risks to human life. Establishment of appropriate procedures to identify malfunctions in technical processes and mistakes made by those responsible).

  • Boudaïeva v. Russia (20/03/2008): the Court confirmed its jurisprudence by declaring that States have a duty to safeguard human life.

The ECHR also protects the citizen’s right to participate in the decision-making process. The judge used article 8 of the ECHR on the right to privacy:

  • Hatton et al v. UK (08/07/2003): the Court considers that not only must the authorities take account of the interests of individuals, but that it is also vital that they should be able to benefit from the means to make representations to these same public authorities.
  • Dubetska vs Ukraine (10/02/2011): the Court stresses the importance of citizen participation in decision-making.
  • In another case (v. Romania and v.Turkey), the judge ruled that only personally affected citizens have the right to participate in decision-making (public concerned).
  • International law

Environmental issues and problems have developed in a context of globalization (over 300 multilateral conventions and treaties). In addition to legal obligations, they are mainly composed of principles, recommendations and incentives to respect common objectives.

Soft law accounts for a large proportion of international law.

The initial goal set by supranational law was more akin to a declaration of environmental objectives to be achieved, and this trend corresponds to the emergence of greater recourse to soft law, i.e. law that is not immediately imperative, based on incentives, or fuzzy law, i.e. law whose contours are deliberately uncertain so as to leave room for manoeuvre to its addressees.

This is the idea of environmental governance: the current emergence of a so-called post-modern law (a recent legal phenomenon) in which law is the product of the multidisciplinary intersection of fluctuations (legal pluralism, diversity of actors in decision-making processes) and more or less binding provisions. Environmental law is a perfect example of this phenomenon.

  • United Nations law

Several bodies play an important role in the environmental field:

  • The UN General Assembly, which has played a major role in convening several major international conferences on the environment and sustainable development.
  • The UN Stockholm Convention on the Human Environment (1972)
  • Rio Conference on Environment and Development (1992)
  • Johannesburg World Summit on Sustainable Development (2002)
  • UN Conference on Sustainable Development (2012)

The UNGA also ensures follow-up to the results of these major conferences, as illustrated by the example of the follow-up to the Rio Conference:

  • The New York summit known as Rio +5,
  • The Rio +20 World Summit on Sustainable Development
  • or the UN Conference on Sustainable Development Rio +10

Other major UN conferences that have addressed environmental issues: for example, the Millennium Declaration (8/09/2000) included environmental objectives.

More recently, we have global sustainable development goals, which are an important component of the 2030 development agenda.

  • UN Environment Programme (UNEP, 1972), a subsidiary body of the UNGA. As such, it is controlled and financed by the UNGA.

It is conceived as a catalyst for international action in the environmental field, and to this end, UNEP collaborates with numerous stakeholders, including UN bodies, international organizations, national governments, associations and NGOs.

  • The Security Council (1945).

The international community gradually became aware of the consequences that poverty could have on the emergence of threats to international peace and security. Sustainable development could help prevent conflicts.

  • The International Court of Justice.

It has general jurisdiction over international disputes.

A special chamber was set up to deal with environmental issues in the 1990s (shortly after the Danube dam case was referred to it by Hungary and Slovakia). This chamber has never really been used, but the Court is itself familiar with a fairly large number of environmental cases. It did deal with the Danube dam case and delivered a judgment on the Pulp Mills on the Uruguay River case. This was a case between Argentina and Uruguay on April 1, 2010. All in all, the ICJ has an important role to play.

We have specialized UN agencies:

  • The Food and Agriculture Organization.
  • The International Maritime Organization.

UNESCO intervenes in environmental matters mainly by virtue of its mission to research and disseminate knowledge in the exact and natural sciences. Because it does indeed have access to culture and the right to education, which are important rights that form part of this kind of environmental rights package.

Then there’s EU law, which is an old law. It dates back to 1957, with the Treaty of Rome, which made no provision for action in environmental matters, since its primary aim was to establish a common market. The first texts relating to the environment were therefore adopted on the basis of Article 100 of the Treaty of Rome. We have the directive of March 20, 1970 on the approximation of the laws of the Member States relating to the measures to be taken to protect the air from gases produced by spark-ignition engines fitted to vehicles.

  • The first action program for the environment is important because the Paris Summit, held in 1972 with heads of government and heads of state, recognized that economic expansion must lead to an improvement in the quality and standard of healthy living. Particular attention would therefore be paid to environmental protection. Community institutions were invited to draw up a program of actions with a precise timetable.
  • The Single European Act, which came into force in 1987, introduced the concept of environmental protection into the Treaty of Rome, as well as laying the necessary legal foundations by incorporating Article 7 on the environment.
  • This was also the background to the EEC Treaty.
  • In 1992, the Maastricht Treaty on the EU, which gave great importance to the environment, made it a political issue and introduced the requirement to integrate environmental issues into the definition and implementation of other Community policies.
  • The Treaty of Amsterdam also continued this development to some extent, and finally the Lisbon Treaty of 2009 added a new objective to the Union’s environmental policy, with the promotion at international level of measures designed to tackle regional or global environmental problems, and in particular the fight against climate change. So we have a real boom in European environmental law.

European environmental law is a shared competence between the EU and the Member States, subject as a consequence to the principle of subsidiarity, which implies that the Union intervenes insofar as the objectives of the planned action cannot be sufficiently achieved by the Member States, but can be better achieved by the Union because of the scale of the effects of the planned action.

The EU and environmental protection have weak points. We have a good number of directives which tend to regulate the degree of harmonization downwards, leaving a great deal of discretion to national authorities and allowing a fair amount of flexibility, notably by means of numerous derogations. We can see that the environment is at the forefront of infringements of European law at both European and national level. Finally, international law has repercussions on national jurisdictional protection. When we go to court, we can effectively rely on elements of international law. In recent years, this has been increasingly the case in a number of actions, notably in France, but also in the rest of the world.

In France, we might mention the Affaire du Siècle. This is a social phenomenon made up of associations and individual citizens who are taking stock of the French government’s failure to meet international environmental targets. The climate justice Affaire du Siècle is a perfect illustration of the notion of justice. Environmental activism in terms of climate justice was born in the 80s. Environmental justice organizations were at the origin of the concept of political ecology, which was subsequently adopted by both academics and governments. Various academic studies have demonstrated that environmental activism, in addition to the prism of awareness it has introduced into human consciousness, is at the origin of the various rules of environmental law.

What is l’Affaire du siècle? It’s a climate justice campaign in France initiated by four associations, namely Fondation pour la Nature et l’Homme, Greenpeace France, Notre Affaire à Tous and Oxfam France. It is an action initiated on December 17, 2018 to sue the State for inaction in the fight against global warming. The NGOs have referred the matter to the Paris Administrative Court. They have opted for full litigation, i.e. an action to hold the French state liable for its culpable failings in the fight against climate change. Recourse to the courts is not generally an option ignored by environmental associations. On the contrary, it turns out that environmental litigation is essentially a matter for associations. This observation is linked to two complementary phenomena. On the one hand, NGOs are increasingly seeking to use far more formal legal means in addition to their traditional claims, and on the other, they are gradually drawing conclusions from the lack of binding effectiveness of public information and participation procedures. The case of the century comes in response to this negative answer given by the Minister for Energy Transition. NGOs have made a prior request for compensation to several ministers of the French government and this request made by associations sought “compensation for their moral prejudice and that of their member and ecological prejudice resulting from the failings of the State. By letter February 15, 2019, it was amply relayed on social networks. The Minister of Ecological Transition and Solidarity responded by rejecting any responsibility on the part of the State. It was a response that encouraged the collective. A summary petition with a supplementary brief was then filed with the Paris Administrative Court. In this action, the NGOs of the sphere of the century sought compensation for their moral prejudice, estimated at a symbolic sum of money. The judge of full litigation pronounces an injunction on the basis of article L 911-1 of the Code of Administrative Justice, so that the judge of full litigation pronounces an injunction against the Prime Minister and the competent ministers to adopt all measures necessary to put an end to the moral prejudice suffered as well as the ecological prejudice. When we look at this contentious action, we can see that it corresponds to the State being held liable for fault as a result of inaction or failure to act.The administrative court found the French state liable for the ecological damage caused by its failure to meet the targets it had set itself for reducing greenhouse gas emissions. However, the judgment condemned the state and rejected the claims of the plaintiff associations for financial compensation for this damage. These four associations were also at the origin of a large case. The Paris Administrative Court recognized the existence of ecological damage, basing its decision on the work of the Intergovernmental Panel on Climate Change. The constant rise in the earth’s average global temperature is mainly due to man-made greenhouse gas emissions. If we are to limit global warming, we need to reduce greenhouse gas emissions by 2030. greenhouse gas emissions by %45 compared with 2010, and to achieve carbon neutrality by 2050 at the latest. The French government, which has recognized the urgent need to combat climate change and its ability to do so effectively, has chosen to sign up to international commitments and, at national level, to exercise its regulatory powers, in particular by implementing a public policy to reduce greenhouse gas emissions from the national territory, by which it has undertaken to achieve a certain number of objectives in this area by specific and successive deadlines. Based on these international commitments, we are relying on a decision by the administrative court which recognizes France’s responsibility for inaction in the fight against climate change. So we can see that international conventions can have elements which, for some of them, can appear binding and therefore have repercussions before the national judge.

Question: For some time now, we’ve been observing that people are turning to the mechanisms for protecting fundamental rights, but there have been no concrete consequences. Do you think this is likely to change in the near future, given the increasing visibility of climate change?

Yes, in any case, we’ve never seen so much action against the state in recent years. It’s nothing new. We saw it in the Affair of the Century. But on the European continent, we’re currently seeing a proliferation of climate litigation initiated against European states, in Germany, Belgium, Ireland and the United Kingdom. Of course, there are various cases in which the State is made to face up to its responsibilities, and this responsibility can generally be associated with an injunction. In such cases, the judge will issue injunctions against the State, and impose certain timetables, especially in the face of this kind of emergency – we’re talking about the visibility of climate change. We’ve got some pretty big cases on air pollution. So, we’re faced with an acquired right that’s in the process of changing. We can’t say we’re not dealing with revolutionary law, but that’s how legal revolutions start from the ground up. I believe that national and international judges will lay the foundations for true accountability. Citizen participation in bringing cases before the courts is very important. Civil society and NGOs bring cases before the courts to have an impact and influence on decision-making processes and on any decision that may have an impact on the environment.

Question: Some thinkers like Noah Harari claim that the liberalism that dominates the world today has failed on the environmental question and offers no hope of a concrete solution for the future. Do you think liberalism can provide an immediate answer?

Liberalism depends on how you look at it. If it’s liberalism that contains the great freedoms, then we can use liberalism as a springboard. Because all these environmental rights are born of a certain liberalism. You have to believe it and say that if it’s economic liberalism, there can be red lights, because environmental law is all about climate and environmental justice. I think that regulated liberalism will undoubtedly do the trick, but not just any liberalism.

Question: Does the green movement, which has been very successful recently in several European democracies, have an impact on the protection of environmental law?

Yes, we’ve had some fairly important decisions. In Bordeaux, for example, we’ve taken some important decisions with the Tree Rights Charter and the adoption in September of a solidarity fare for public transport use. This is important because public transport is an important part of the environment. A system ranging from free travel to reductions of up to %30 for those on the lowest incomes. I think this green movement in France has had a few forays. Grenoble is also historically marked by political ecology. This green wave arriving in other countries like Germany doesn’t have the same conception as the green party in France. There are certain differences of opinion. But we’ll have to wait and see, it’s still early days. We don’t have enough hindsight, but it’s encouraging and a real strength. I hope it will have a positive impact on the protection of environmental law.

Question: What is the value of the UN special procedure, and in particular the Special Rapporteur on Human Rights and the Environment, for the development of environmental awareness?

It’s an additional element of the UN that helps ensure respect for the environmental values that have emerged from the various conferences.

Question: -What do you think will be the most concrete outcome of the Cop26 meeting in Glasgow?

I don’t know, I’m waiting to see.

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