The Future of Environmental Law: Ambition and Reality 1035314630, 9781035314638

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The Future of Environmental Law

THE IUCN ACADEMY OF ENVIRONMENTAL LAW SERIES Founding Series Editors: Kurt Deketelaere, University of Leuven, Belgium and Zen Makuch, Imperial College London, UK Editorial Board Zen Makuch, Imperial College London, UK (Editor in Chief) Jamie Benidickson, University of Ottawa, Canada (Editor in Chief) Natasha Affolder, University of British Columbia, Canada Javier de Cendra, IE Law School, Spain Veerle Heyvaert, London School of Economics, UK Francesco Sindico, University of Strathclyde, UK As environmental law increases in importance as an area of legal research, this series brings together some of the most current research carried out by the IUCN Academy of Environmental Law, a global network of environmental law scholars. Each volume in the series addresses an important issue in the field and presents original research analysis and assessment, along with a much-needed synthesis of the state of environmental law. Directions as to the positive role that environmental law can play at a global level are also emphasized. This series provides essential reading for scholars throughout the world with an interest in cutting edge environment-related issues, and will no doubt play an important role in shaping future debate. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www​.e​-elgar​.com

The Future of Environmental Law Ambition and Reality

Edited by

Stefan E. Weishaar Professor of Law and Economics, University of Groningen, the Netherlands

Kars J. de Graaf Professor of Public Law and Sustainability, University of Groningen, the Netherlands

THE IUCN ACADEMY OF ENVIRONMENTAL LAW SERIES

Cheltenham, UK • Northampton, MA, USA

© The Editors and Contributors Severally 2023

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023937053 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781035314645

ISBN 978 1 0353 1463 8 (cased) ISBN 978 1 0353 1464 5 (eBook)

EEP BoX

Contents List of figuresvii List of tablesviii Editorial review boardix List of contributorsxi 1

Introduction to The Future of Environmental Law1 Kars J. de Graaf and Stefan E. Weishaar

PART I 2

3

4

THE PROFOUND ROLE OF INTERNATIONAL LAW

Governing the ocean in the Anthropocene era: area-based management as a tool to promote the socialisation of the law of the sea Vonintsoa Rafaly An insufficient tool for sustainable development: limitations of systemic integration under Article 31(3)(c) of the Vienna Convention on the Law of Treaties Kazuki Hagiwara The role of principles of international environmental law in greening the interpretation of human rights: the case of the UN Committee on Economic, Social and Cultural Rights Megan Donald

PART II

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49

LEGAL PERSPECTIVES ON SUSTAINABILITY

5

The legal dimension of sustainability José Juan González Márquez

66

6

Sustainable management: political slogan or legal norm? Trevor Daya-Winterbottom

85

7

In doubt when in favour of nature? Taking science seriously in the Anthropocene epoch Mariana Coelho and Patryck Ayala v

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vi

8

The principle of reparation: why the polluter-pays principle does not suffice and how to rebuild the law on environmental damage Heloísa Oliveira

121

PART III ENERGY 9

Renewables under the scrutiny of international investment law: the feed-in tariff Monika Feigerlová

10

The proliferation of offshore renewable energy in European seas: the regulatory challenges of emerging technologies for EU environmental law Nikolaos Giannopoulos

141

158

11

Environmental litigation before regional economic courts in Africa and Latin America Sonja Kahl

178

12

The national green tribunal model to ensure environmental justice through collaboration Masrur Salekin

196

13

People v Arctic Oil: context, judgment and takeaways for future climate litigation Suryapratim Roy and Alexandru Gociu

215

PART IV CASE STUDIES 14

A major future challenge for environmental law: salinization Annalies Outhuijse, Tatia Brunings, and Ida Helene Groninga

15

Bringing nature back to agricultural land: bridging ambition and reality in agri-environmental governance Edwin Alblas

16

Groundwater relevance for Brazilian semiarid development in the northeast: the need for protective environmental laws Jose Irivaldo Alves Oliveira Silva

236

252

270

Index287

Figures 16.1 Semiarid region in northeastern Brazil

273

16.2 Rural sanitation situation by region in Brazil

281

vii

Tables 15.1 Main characteristics of the case studies

260

15.2 Crowding-in and crowding-out factors for farmers’ participation

266

16.1 Municipal Human Development Index of Brazilian states277

viii

Editorial review board The chapters in this book have been brought to publication with the help of an editorial review board dedicated to peer review. Chairs: Weishaar, Stefan E., University of Groningen, the Netherlands De Graaf, Kars J., University of Groningen, the Netherlands Members: Edwin Alblas, Wageningen University and University of Groningen, the Netherlands Viola Bex-Reimert, University of Utrecht, the Netherlands Lolke Braaksma, University of Groningen, the Netherlands Marcel Brus, University of Groningen, the Netherlands Ruohong Chen, Beijing Foreign Studies University, China Trevor Daya-Winterbottom, University of Waikato, New Zealand Harm Dotinga, Vogelbescherming, the Netherlands Ruven Fleming, University of Groningen, the Netherlands Roberta Grecco, LUMSA University, Italy Jan Jans, University of Groningen, the Netherlands Herman Kasper Gilissen, University of Utrecht, the Netherlands Rosalie Koolhoven, University of Groningen, the Netherlands Panos Merkouris, University of Groningen, the Netherlands Ceciel Nieuwenhout, University of Groningen, the Netherlands Emanuela Orlando, University of Sussex, United Kingdom Roy Partain, University of Aberdeen, Scotland Charlotte Pavilion, University of Groningen, the Netherlands Marjan Peeters, University of Maastricht, the Netherlands Lorenzo Squintani, University of Groningen, the Netherlands Solange Teles da Silva, Mackenzie Presbyterian University, Brazil Natascha Trennepohl, Trennepohl advogados, Brazil Geert van Calster, KU Leuven, Belgium Marleen van Rijswick, University of Urecht, the Netherlands Jonathan Verschuuren, Tilburg University, the Netherlands ix

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The future of environmental law

Ceri Warnock, University of Otago, New Zealand Margaretha Wewerinke, Leiden University, the Netherlands

Contributors Edwin Alblas, Wageningen University and University of Groningen, the Netherlands Patryck Ayala, Federal University of Mato Grosso, Brazil Tatia Brunings, Ministry of Public Health, Social Development and Labour, Stafburea, Government of Sint Maarten Mariana Coelho, Federal University of Santa Catarina, Brazil Trevor Daya-Winterbottom, University of Waikato, New Zealand Megan Donald, Stellenbosch University, South Africa Monika Feigerlová, Institute of State and Law of the Czech Academy of Sciences, Czech Republic Nikolaos Giannopoulos, Utrecht University, the Netherlands Alexandru Gociu, Trinity College Dublin, Ireland Kars J. de Graaf, University of Groningen, the Netherlands Ida Helene Groninga, Krose GmbH & Co. KG, Germany Kazuki Hagiwara, Fukuoka University, Japan Sonja Kahl, Albert Ludwig University of Freiburg, Germany José Juan González Márquez, Metropolitan Autonomous University, Mexico Heloísa Oliveira, University of Lisbon and Lisbon Public Law Research Centre, Portugal Annalies Outhuijse, Stibbe NV, the Netherlands Vonintsoa Rafaly, University of Gothenburg, Sweden Suryapratim Roy, Trinity College Dublin, Ireland Masrur Salekin, Additional District & Sessions Judge, Bangladesh and National University of Ireland Galway, Ireland xi

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Jose Irivaldo Alves Oliveira Silva, Federal University of Campina Grande, Brazil Stefan E. Weishaar, University of Groningen, the Netherlands

1. Introduction to The Future of Environmental Law Kars J. de Graaf and Stefan E. Weishaar 1.

INTRODUCTION: THE PAST AS A STEPPING STONE FOR THE FUTURE

Environmental law is a vibrant and dynamic field of research with a societal relevance that can hardly be overstated. Throughout history governments have passed laws to protect mankind from environmental degradation caused by mankind, but it was at the inception of the twentieth century that international agreements also began to have an environmental orientation and started protecting useful or commercially valuable species (examples include the 1900 London Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa that Are Useful to Man or Inoffensive and the 1902 Convention for the Protection of Birds Useful to Agriculture). The thrust of such agreements seemed to be directed more towards preserving the benefits of nature and natural beauty for mankind than towards protecting the environment in its own right. Subsequently, environmental protection was approached from a conservation perspective, as exemplified by Roosevelt’s North American Conservation Conference that led to the creation of principles for conservation of the whole continent’s natural resources, including water and wildlife, alongside unsuccessful calls for a Hague Peace Conference on Nature Conservation in 1909.1 On the initiative of Julian Huxley, the first Director General of UNESCO, representatives of governments and conservation organizations signed a formal act constituting the International Union for the Protection of Nature on 5

1 See DOI:10.7208/chicago/9780226197937.003.0011. https://​ chicago​ .univer​ sitypresss ​ c holarship ​ . com/ ​ v iew/ ​ 1 0 ​ . 7208/ ​ c hicago/ ​ 9 780226197937 ​ . 001 ​ . 0001/ ​ u pso​ -9780226197760​-chapter​-11 and Sand Peter H, ‘International Protection of Endangered Species in the Face of Wildlife Trade: Whither Conservation Diplomacy?’ (2017) 20 Asia Pacific Journal of Environmental Law, 5–27 at p.6, available at https://​gawsmith​ .ucdavis​.edu/​uploads/​2/​0/​1/​6/​20161677/​sand​_2017​_apjel​.pdf

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The future of environmental law

October 1948, in Fontainebleau, France. At this time the IUPN was the only international organization focusing on the full spectrum of nature conservation. It later changed its name to International Union for Conservation of Nature and Natural Resources (IUCN). The 1972 United Nations Conference on the Human Environment, held in Stockholm, was an important milestone in the development and broadening of environmental protection. This conference was the first global conference dedicated to the environment and an attempt to create a common outlook. It was directed towards achieving broad policy goals rather than ‘detailed normative positions’.2 It led to the adoption of the Stockholm Declaration3 containing guiding principles, placed environmental issues firmly on the agenda at a global stage and sparked a dialogue between developed and developing countries on the relation between economic growth, pollution and the well-being of people around the globe.4 Moreover, it recommended an Action plan encompassing a Global Environmental Assessment Programme, environmental management activities and support measures.5 It also led to the creation of the United Nations Environment Programme (UNEP), the main international organization to address environmental concerns. In the aftermath of the Stockholm conference more than 50 years ago, awareness of environmental problems increased substantially, and so did international environmental law-making.6 Several important conventions resulted from the conference, including the Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the 2 Günther Handl (2012), Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 1972 and the Rio Declaration on Environment and Development, 1992, United Nations Audiovisual Library of International Law, p.1, available at https://​legal​.un​.org/​avl/​pdf/​ha/​dunche/​dunche​_e​ .pdf 3 See Chapter 1 of the Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, available at: https://​documents​-dds​-ny​.un​ .org/​doc/​UNDOC/​GEN/​NL7/​300/​05/​IMG/​NL730005​.pdf​?OpenElement 4 See United Nations Conference on the Human Environment, 5–16 June 1972, Stockholm, Background, available at www​.un​.org/​en/​conferences/​environment/​ stockholm1972 5 See Chapter 2 of the Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972, available at: https://​documents​-dds​-ny​.un​ .org/​doc/​UNDOC/​GEN/​NL7/​300/​05/​IMG/​NL730005​.pdf​?OpenElement 6 Handl Günther (2012), Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), 1972 and the Rio Declaration on Environment and Development, 1992, United Nations Audiovisual Library of International Law, p.1, available at https://​legal​.un​.org/​avl/​pdf/​ha/​dunche/​dunche​_e​ .pdf

Introduction

3

London Convention, in force since 1975), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES, in force since 1975) and the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention, 1975). The IUCN was involved in the drafting and implementation of some of these. Many more international agreements have been concluded, whose scope has gradually expanded beyond trans-boundary pollution and environmental degradation and global commons issues to cross-sectorial regulation, also bringing economic and development considerations to the fore.7 Developments at the international level are reflected in regional and national regulation in order to achieve the goals of environmental law in light of the guiding principles. At the national and supranational levels, actions have been undertaken. Shortly after the Stockholm conference, the Heads of State or Government of the European Community Member States, for example, emphasized the importance of a Community environmental policy to improve the standard of living conditions and the quality of life. This gave rise to the first Environmental Action Programme (EAP),8 which has since been updated and extended. The EAP provides the environmental general policy framework, sets the most important medium and long-term goals within the European Union and lays out the basic strategy to attain them. EAPs have been instrumental in reducing air, water and soil pollution and restricting hazardous chemical substances.9 One of the main and fundamental challenges of environmental law is the question whether economic growth can be sustainably reconciled with environmental protection. In the aftermath of the Stockholm conference neither industrialized countries nor developing countries were prepared to forego economic growth, but at the same time the environmental risks were all too apparent and neither global nor local environmental challenges could adequately be resolved without reducing poverty in developing countries. In 1983 the United Nations General Assembly created the World Commission on Environment and Development (Brundtland Commission) to address these challenges.10

Handl (2012) p.1. Declaration of the Council of the European Communities and of the representatives of the Governments of the Member States meeting in the Council of 22 November 1973 on the programme of action of the European Communities on the environment OJ C 112, 20.12.1973, pp.1–53. 9 https://​ec​.europa​.eu/​environment/​action​-programme/​ 10 Resolution 38/161 Process of preparation of the Environmental Perspective to the Year 2000 and Beyond, https://​documents​-dds​-ny​.un​.org/​doc/​RESOLUTION/​ GEN/​NR0/​445/​53/​IMG/​NR044553​.pdf​?OpenElement 7 8

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The future of environmental law

The Brundtland Commission’s report ‘Our Common Future’11 was highly influential, shaping the concept of ‘Sustainable Development’. The concept was confirmed by the 1992 United Nations Conference on Environment and Development (Rio Conference), making it a central paradigm of environmental law and policy. The concept of sustainable development is often linked to environmental law, but it represents a paradigm that should underpin not just environmental law and policy but all human action, including all human activities. It is relevant for environmental, social, economic, political and cultural discourses, both at local and global levels, and both in public and private sectors. Moreover, it provides governments and legislators with a normative standard by which they should attempt to abide when drafting and implementing policies and regulations of a social, economic or environmental nature. The ‘Earth Summit’ in Rio had many great achievements, including the Rio Declaration containing 27 principles intended to guide countries towards sustainable development. It also brought about the United Nations Framework Convention on Climate Change (UNFCCC), which would later give rise to the Kyoto Protocol and the Paris Agreement. Moreover, the Convention on Biological Diversity was opened for signature. It also led to Agenda 21, a comprehensive though non-binding action plan to achieve sustainable development. The Rio Conference made a profound impact on environmental law. The environmental issues just mentioned, such as trying to mitigate dangerous human-induced climate change and putting a halt to the loss of biodiversity, are still at the core of the ambitions of environmental law today. Also, broad sustainable development goals were set (leading to the 17 SGDs in 2015 to be achieved in 2030). At the national level, in the aftermath of the Rio Conference, environmental law’s scope became broader; it became more influential and focused on the introduction of effective instruments or instrument mixes. Environmental law and policy and environmental considerations became more intertwined with other areas of law, including human rights law, economic law, energy law and procurement law. Legal principles employed in the area of environmental law were refined and matured, and their application became more sophisticated.12

11 Report of the World Commission on Environment and Development: Our Common Future https://​su​stainabled​evelopment​.un​.org/​content/​documents/​5987our​ -common​-future​.pdf 12 See De Sadeleer N, Environmental Principles: From Political Slogans to Legal Rules (1st edn, Oxford University Press 2002).

Introduction

5

Numerous principles guide environmental law.13 Much attention has been directed at substantive principles such as the precautionary principle. This principle should be considered an environmental risk management tool in environmental decision making and was defined in Principle 15 of the Rio Declaration: ‘Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’14 Uncertain risks fall under the scope of the precautionary principle.15 As scientific uncertainty is often caused by our inadequate understanding of the nature of the ecosystems (complex, resilient and adaptable),16 application of this substantive principle remains relevant for the future ambitions and challenges of environmental law. Another relevant principle is the prevention principle, which asserts an obligation to require the prevention of damage to the environment, and otherwise to reduce, limit or control activities which might cause or risk such damage. The basic rule that environmental damage should be rectified at the source is closely related to this prevention principle. Taking action is required at an early stage, and if possible before environmental damage occurs. The often irreversible character of the detrimental effects to the environment and the limitations inherent in the mechanisms for redressing this type of damage highlights the ‘overriding importance in every effective environmental policy’17 of prevention. The same holds true for the polluter pays principle. It seeks to specify the allocation of pollution mitigation costs and control measures in order to encourage the rational use of scarce environmental resources, and to avoid distortions in international trade and investment.18 It aims to internalize environmental costs for those who cause the environmental damage by production or consumption and is enshrined in the Rio Declaration (Principle 16). On the other hand, procedural principles have grown in relevance, as they are at the basis of substantive rights. Principle 10 of the Rio Declaration is 13 Krämer L and Orlando E (eds), Elgar Encyclopedia of Environmental Law, Volume VI: Principles of Environmental Law (1st edn, Edward Elgar Publishing 2018). 14 Sands P and Peel J, Principles of International Environmental Law (4th edn, Cambridge University Press 2018). See also: art. 3(3) UNFCCC. 15 De Sadeleer N, ‘The Precautionary Principle as a Device for Greater Environmental Protection: Lessons from EC Courts’ (2009) 18(1) Review of European Community & International Environmental Law 3. 16 Sands P and Peel J, Principles of International Environmental Law (4th edn, Cambridge University Press 2018), pp.267–79. 17 Krämer L, EEC Treaty and Environmental Protection (1st edn, Sweet & Maxwell 1990), p.61. 18 See: OECD, Recommendation on Guiding Principles Concerning International Economic Aspects of Environmental Policies, C(72)128.

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known as the environmental democracy principle and places emphasis on access to environmental information, public participation and access to justice in environmental matters. The Aarhus Convention19 of 1998 and the Escazú Agreement20 of 2018 implement this principle by means of binding legal norms. These norms are primarily relevant to governmental actors, as environmental law was and still is primarily a public law domain. Over time we have witnessed a diversification in actors, as development banks, NGOs and also companies assume an increasingly active role in protecting the environment. Private enforcement, even of international agreements between states,21 and the proliferation of international agreements served to hold all actors more accountable, thereby helping environmental law to fulfil its role of protecting the living environment for the current and future generations. Environmental law in a world of multilevel jurisdictions is evolving from negotiating guiding principles and prescribing environmental policies to setting time-bound, measurable and achievable goals in order to secure a sustainable future. The future of environmental law and policy is arguably to set objectively justifiable binding targets for ecological sustainability (entailing the protection of the integrity of ecosystems worldwide) and provide for effective legal and policy instruments to monitor progress, adapt measures and goals when necessary and allow for enforcement action, in all relevant jurisdictions. This volume hopes to contribute to that future.

2.

AIM, SCOPE AND CONTENT OF THIS VOLUME

Entitled The Future of Environmental Law: Ambition and Reality, this volume is dedicated to both identifying the legal instruments of environmental law that have been (un)successful and discussing future challenges and innovative applications of environmental law to assist in achieving sustainability goals in an efficient and effective way. Both at the international level and at regional and national levels, it seeks to distil a realistic understanding of what environmental law can do and set a research agenda for the future as we move towards new milestones in 2030.

19 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001), 2161 UNTS 447 (Aarhus Convention). 20 Regional Agreement on Access to Information, Participation and Justice in Environmental Matters in Latin America and the Caribbean (adopted 4 March 2018, entered into force 22 April 2021), C.N.196.2018 (Escazu Agreement). 21 See the Urgenda case and the Milieudefensie v Shell case, The Hague District Court 26 May 2021, ECLI:NL:RBDHA:2021:5339.

Introduction

2.1

7

The Profound Role of International Law

The thrust of international law seems to be to foster a stable legal order that supports peace and security and helps to resolve conflicts. It is submitted by Vonintsoa Rafaly that in the age of the Anthropocene, protecting the environment should be a shared concern and aid the process of State empowerment. The expansion of human activities strongly impacts the marine environment through ocean acidification, loss of biodiversity, warming sea temperatures, sea-level rise, and so on. The author examines how ‘area-based management tools’ (essentially locally confined areas that allow for more stringent environmental protection) can promote common interests and inclusive cooperation and empower relevant stakeholders to foster sustainable ocean governance in the presence of rapid change and scientific uncertainty. Kazuki Hagiwara focuses on treaty interpretation, specifically the codified systemic integration under Article 31(3)(c) of the Vienna Convention. He explores the scope and limitations of this provision in achieving sustainable development through treaty interpretation. Sustainable development requires the reconciliation of conflicting or overlapping norms that reflect different policies and values given social changes and newly acquired scientific knowledge. The limited scope of this provision leads him to the conclusion that there is an insufficiency to achieve sustainable development. The systemic integration under Article 31(3)(c) may not be a sufficient tool for reconciling conflicting rules of international law reflecting contradictory policies for sustainable development. On the basis of his analysis, the author provides a few suggestions to cure this insufficiency. Megan Donald emphasizes that the environment and human rights guaranteed in international treaties can be integrated by ‘greening’ human rights through interpretation. Interpreting human rights from an environmental perspective and incorporating relevant environmental considerations within the scope of existing rights allows for an integration approach. Such an approach can enhance the protection of human rights in the face of environmental threats. This chapter proposes that this greening of human rights can be enriched by relying on principles of international environmental law to guide the interpretation and application of human rights. 2.2

Legal Perspectives on Sustainability

Although the concept of sustainable development remains somewhat elusive, and its legal implications therefore possibly a bit vague, in his contribution José Juan González Márquez analyses the legal implications of the sustainable development paradigm. The author argues that this paradigm and principles of environmental law imply the modification of basic legal rules that govern the

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functioning of the global economy. Legal constructs such as the human right to individual freedom, the old institution of private property, the sovereignty of the State and the civil liability system have been altered and will, according to the author, need further modification in order to accommodate the legal implication of the principle of sustainability that is both foundational and aspirational. Sustainable management of natural and physical resources and protecting biodiversity is key for mankind to live within a safe operating space and within the planetary boundaries. On this theme Trevor Daya-Winterbottom takes the Resource Management Act 1991 of New Zealand, the case law of the courts and the future act under consideration (the Natural and Built Environments Bill) and considers that senior courts have played an important role in bringing about sustainable management as a legal norm rather than a political slogan. As law is a ‘design discipline’, both the legislator and courts may provide useful legal structures to stimulate sustainability. The contribution describes the development from a weak anthropocentric approach by the courts (2007–14) to the innovative ways in which the senior courts have properly introduced and applied the principle of sustainable management (2014–21). Moreover, the statutory purpose in the proposed Nature and Built Environments Bill seems to have a much firmer ecological focus and comes very close to ascribing legal personality to the environment as a subject. Stressing the planetary boundaries and ecosystem integrity at a more theoretical level are Mariana Coelho and Patryck Ayala. Their chapter on taking science seriously in the Anthropocene epoch argues that legal responses that favour the protection of nature cannot be limited as a result of restrictive application of a so-called in dubio pro natura principle. This restrictive application of such a principle considers that the principle is only relevant in a context of (scientific or interpretative) doubt. The authors argue – on the basis of, among others, the precautionary principle and the literal meaning of the in dubio pro nature principle as it is expressed in the Ecuadorian Constitution – not only that decisions in favour of nature are justified in cases of doubt and scientific uncertainty, but that the moment has arrived at which decisions in favour of nature are justified by increasing levels of science. In her topical chapter on the principle of reparation, Heloísa Oliveira demonstrates that environmental lawyers have consistently focused on prevention of environmental damage (prevention principle) and have also deduced environmental duties from human rights law, with a focus on prevention and remedying of damages. What the author argues is that these duties also include a duty to ensure that environmental damage is repaired. The duty to ensure environmental remedyiation under any circumstances in which environmental damage is impairing human rights or fundamental rights, should be considered under the principle of reparation. The author convinces her readers that this

Introduction

9

principle could also result from constitutional duties to protect the environment per se (and includes damages to species and habitats). The basic idea is that States have a duty to create legal rules to address serious environmental damage and when they do not, States must ensure remediation directly. 2.3 Energy An essential prerequisite to successfully addressing the climate change crisis is to make progress in the area of energy transitions. A policy vehicle that is frequently relied upon to stimulate private investments in renewable energy are feed-in-tariffs that offer investors payment schemes for a determined period of time. Renewable energy support schemes and their termination or alteration, even if compliant with national law, can contravene state commitments arising from international investment agreements. Monika Feigerlová examines the international investment tribunal awards challenging the introduction of a Czech solar levy and tracks the development in modern investment treaty drafting which seeks to limit investors’ rights arising from the fair and equitable treatment standard. This should provide more clarity to investors and to host states on the scope of protection and thus limit states’ exposure to investment claims. Investments in marine renewables are indispensable for the EU to meet its climate commitments under the European Green Deal. While an important stepping stone towards climate neutrality, offshore environmental energy generation poses risks for marine biodiversity conservation. Especially when offshore generation is scaled up, it will require the striking of trade-offs between the marine environment and the climate, thereby posing challenges for environmental regulation. Nikolaos Giannopoulos examines the need for recalibrating EU environmental regulation for marine renewables and points to the legal gaps and challenges. The author proposes the need to further explore the advantages and limitations of co-regulation in regulating marine renewables within the multilevel EU legal order instead of merely raising concerns of the compatibility of private environmental standards with the EU’s constitutional principles. 2.4

The Contribution of Adjudication

Much of the environmental litigation has focused on a relatively small number of courts, such as the International Court of Justice, the Dispute Settlement Mechanism of the World Trade Organization, the Court of Justice of the European Union (CJEU) and regional human rights courts. Regional tribunals of economic integration in Africa and Latin America have been largely neglected. These courts are often based on the CJEU or have broader access

The future of environmental law

10

rules for NGOs, opening up the possibilities for new strategies of environmental litigation based on administrative and community law principles. Unlike human rights courts, many regional economic courts do not even necessitate the identification of a human victim. Sonja Kahl suggests that in the future, these approaches may provide an interesting alternative to the predominant human rights-based approach applied in international environmental litigation, because they do not require squeezing environmental disputes into a human rights narrative. The increasing complexity of environmental law, the increasing ties with human rights and the perceived urgency to address environmental matters, paired with dissatisfaction about the competence of existing general judicial fora, have all prompted the proliferation of environmental courts and tribunals. This trend is likely to continue. Masrur Salekin examines the functionality of the National Green Tribunal (NGT) of India and demonstrates that adopting a collaborative approach involving state organs and stakeholders in environmental decision making can help to achieve environmental justice. Recognizing the multifaceted, polycentric and interdisciplinary nature of environmental problems, Salekin proposes the collaborative approach as a method for adjudicating future environmental litigation. Suyapratim Roy and Alexandru Gociu take the decision of the Norwegian Supreme Court in People v Arctic Oil as an object to question whether licensing decisions for oil exploration are invalid for not accounting for combustion emissions from oil exports. Notably, the plaintiffs in this case invoke the constitutional right to a clean and healthy environment for challenging the decision. The authors analyse the judgement within the political context of Norwegian oil policy, focusing on the policy coalition that preferred ‘weak sustainability’ to a new policy coalition in favour of stronger environmental protection. They then suggest two takeaways for future climate litigation: the potential of the right to a healthy environment in shaping climate policy, and the logic in viewing extraterritorial emissions as a domestic policy concern. 2.5

Case Studies

Annalies Outhuijse, Tatia Brunings and Ida Helene Groninga address a much underestimated and disregarded topic in environmental law that deserves a firm place on our research agendas: salinization. Both land and water are increasingly subject to salinization due to climate change and poor water and land management. This leads to problems for agriculture, drinking water and the environment at large. Agriculture is critical for realizing both the EU’s Green Deal and its Biodiversity strategy. In the EU, governments primarily rely on subsidies for voluntary measures to farmers and agricultural businesses to realize

Introduction

11

the preservation of improvement of the quality of nature and landscapes. Such subsidy schemes are, however, often ineffective because they fail to incentivize the necessary management changes to improve biodiversity performance. In his contribution, Edwin Alblas examines voluntarism in collaborative agri-environmental schemes which involve governmental and non-governmental actors in the processes and structures of decision making and management. Employing a socio-legal research design, the author shows how collaborative governance arrangements in the Netherlands can help to crowd in farmer participation and foster a better understanding of processes and interrelations. Frequent policy changes and regulatory complexity were found to crowd out farmers’ participation. He proceeds to offer policy recommendations on how to implement collaborative governance. A final case study is provided by Jose Irivaldo Alves Oliveira Silva and concerns the Brazilian semiarid development and the relevance of groundwater. Drought in the Brazilian semiarid region has consolidated as a binding socio-environmental condition of all activities. Lack of water is already a constant in the region; thus, strategies to coexist with water scarcity are a daily consideration for people in the semiarid region in the Northeast. Groundwater has become practically the only source of water for the people of the countryside. Groundwater has become increasingly relevant, supplementing other sources such as cisterns and trucks that take water to rural communities through government programmes. The use of groundwater in the northeastern semiarid region is essential for the development and formation of resilient territories. The author concludes that advances have been made through the impact of the judiciary, which has protected Brazilian environmental legislation from setbacks. However, it is important to recognize that the regulation of activities harmful to the environment has lost strength in Brazil, and it is easy to verify a failure to comply with legal norms that results in river pollution, deforestation, fires, hunting and other behaviours that degrade the environment.

3.

AN AMBITIOUS FUTURE OF ENVIRONMENTAL LAW BASED IN REALITY

The chapters brought together in this volume all offer sharp insights into relevant requirements for the future of environmental law, and shape our perception of it. Many of the chapters contribute to the discussion on both the consequences, efficiency and effectiveness of existing environmental law instruments and the prospect of evolving new legal instruments in the quest for an ecological sustainable planet. What is evident from reading the chapters in this volume is that environmental law must rise to many environmental challenges and provide diverse solutions to highly complex societal issues. It is therefore not surprising that the future of environmental law will most

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The future of environmental law

likely consist of an evidence-based, balanced and smart mix of financial and legal instruments. The chapters in this volume might be considered to provide a much needed and relevant comparative outlook on the future of environmental law. Whatever the future may hold, environmental law must be both ambitious and based in reality. We hope the reader will find that this volume contributes to the discussion and provides relevant information and insights to that end.

PART I

The profound role of international law

2. Governing the ocean in the Anthropocene era: area-based management as a tool to promote the socialisation of the law of the sea Vonintsoa Rafaly 1. INTRODUCTION The development of global environmental challenges urged the emergence of a new generation of environmental law that promotes inclusiveness, a systemic approach and mutualisation of resources and responsibility.1 Indeed, human activities profoundly impact natural processes, so that natural changes experienced nowadays are mainly human-driven. This strong anthropogenic force over nature led to a new era, named the Anthropocene2 and characterised by unprecedented, rapid and uncertain changes in the environment. Under the Anthropocene, the existing normative and institutional framework is seriously challenged. It calls for a paradigm shift. This paradigm shift is to be grounded upon the existing framework by emphasising the need to protect the environment as a shared concern. This is, for example, the case with regard to the protection and conservation of the marine environment and its resources.3

1 See the reflections on US environmental law in CA Arnold, ‘Fourth-Generation Environmental Law: Integrationist and Multimodal’ (2011) 35 William and Mary Environmental Law and Policy Review 771, 773. For an analysis in the international realm, see A Long, ‘Global Integrationist Multimodality: Global Environmental Governance and Fourth Generation Environmental Law’ (2015) 21 Journal of Environmental and Sustainability Law 169. 2 See W Steffen, PJ Crutzen and JR McNeill, ‘The Anthropocene: Are Humans Now Overwhelming the Great Forces of Nature?’ (2007) 36 Ambio 614, 614. 3 Davor Vidas refers to the need of responsibility for the seas, not by questioning well-established norms and rules such as States’ sovereignty or sovereign rights, but rather promoting the protection and conservation of the marine environment and its resources as a shared concern. See D Vidas, ‘The Anthropocene and the International

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Governing the ocean in the Anthropocene era

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The expansion of human activities highly impacts the marine environment, through ocean acidification, loss of biodiversity, warming sea temperature, sea-level rise and many more factors. Such changes challenge the very existence of the law of the sea, which aims to maintain certainty and predictability to achieve the ultimate objective of international law to facilitate the avoidance of conflicts and maintain peace among States.4 Traditionally, marine environmental law evolved by learning from experiences. For example, the marine pollution regime was developed mainly due to significant oil-spill events. However, such a system is likely to fail in an ever-changing situation because the legal framework will not be adaptive enough to cope with rapid, uncertain and unprecedented challenges. Additionally, the law of the sea regulates human activities at sea through a zonal approach and establishes jurisdictional boundaries in the governance of maritime activities. As recent studies have highlighted the importance of ocean connectivity,5 this territorialisation of the oceans hinders appropriate and sustainable ocean governance. Therefore, addressing changing and uncertain circumstances requires a paradigm shift in ocean governance that allows the development of different legal options.6 The socialisation of the law of the sea can constitute a narrative for developing these legal options. The socialisation process in international law is defined through three factors: the promotion of common interests, the use of different means of cooperation to enhance inclusiveness and the empowerment of relevant stakeholders.7 Area-based management tools (ABMTs) are a means to enhance cooperation and coordination to promote consistency and complementarity in ocean governance.8 ABMTs refer ‘to a range of spatially determinate measures designed Law of the Sea’ (2011) 369 Philosophical transactions of the Royal Society of London 909. 4 D Vidas et al, ‘Climate Change and the Anthropocene: Implications for the Development of the Law of the Sea’ in E Johansen, S Veierud and IU Jakobsen (eds), The Law of the Sea and Climate Change: Solutions and Constraints (Cambridge University Press 2020) 22, 23 and 42. 5 A Rogers et al, The High Seas and Us: Understanding the Value of High-Seas Ecosystems (The Global Ocean Commission 2014); E Popova et al, ‘Ecological Connectivity between the Areas beyond National Jurisdiction and Coastal Waters: Safeguarding Interests of Coastal Communities in Developing Countries’ (2019) 104 Marine Policy 90. 6 Ibid, 23. 7 W Schücking, ‘L’organisation internationale’ (1908) 15 Revue générale de droit international public 5; see also W Schücking, ‘Der wahre Völkerbund’ Berliner Zeitung (Berlin, 1921) VI, 17. 8 See D Tladi, ‘The Proposed Implementing Agreement: Options for Coherence and Consistency in the Establishment of Protected Areas beyond National Jurisdiction’ (2015) 30 IJMCL 654.

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The future of environmental law

to prevent harm to the environment, conserve resources and/or coordinate activities’.9 These spatial closures offer greater environmental protection by establishing stricter regulations for one or more human activities (shipping, fishing, mining) in a specific area and for one or more purposes (protection of the marine environment, restoration of fish stocks).10 The overall aim is to prevent harm to the environment and at the same time facilitate cross-sectoral cooperation and coordination.11 As they are adaptative to different situations, ABMTs are crucial to balancing different interests (local, national, regional or international community interests) and dealing with different issues (fisheries, navigation and other extractive activities).12 Therefore, they represent an opportunity for establishing systemic, inclusive and integrated ocean governance while considering rapid and uncertain changing circumstances. This study aims to question the relevance of ABMTs in addressing the future challenges in the Anthropocene era. It answers the question: to what extent do ABMTs promote common interests, inclusive cooperation and empowerment of relevant stakeholders for more sustainable ocean governance under conditions of rapid and uncertain change? To answer the question, the reflection is built on the analysis of relevant legal instruments, legal doctrine and States’ practice related to the use of ABMTs. It is divided into three parts. First, the study tries to define socialisation in international law and how the ABMTs illustrate this process in the interplay between international environmental law and the law of the sea. Then, it focuses on current challenges that the ABMTs regime is facing within this context. Finally, it explores the work in progress to draw the future of ABMTs and how it could enhance the process of socialisation in ocean governance and the development of the law of the sea.

9 R Barnes, ‘The proposed LOSC Implementation Agreement on Areas Beyond National Jurisdiction and its Impact on International Fisheries Law’ in D Freestone (ed), Conserving Biodiversity in Areas Beyond National Jurisdiction (Brill 2019) 104, 115. 10 EM De Santo, ‘Implementation Challenges of Area-based Management Tools (ABMTs) for Biodiversity Beyond National Jurisdiction (BBNJ)’ (2018) 97 Marine Policy 34. 11 Barnes (n 9) 125. See, for the case of the high seas, UNEP-WCMC, ‘Area-Based Planning in Areas Beyond National Jurisdiction: A Synthesis’ [2019] GEF ABNJ Deep Seas Project, Cambridge, UN Environment Programme World Conservation Monitoring Centre, 4. 12 For example, ABMTs facilitate the balance between the freedom of usage and the protection of the marine environment, according to the needs of users and environmental requirements. See O Delfour-Samama, ‘Les aires marine protégées, outil de conservation de la biodiversité en haute mer’ (2013) 19 Neptunus E-Revue 1, 3 accessible on .

Governing the ocean in the Anthropocene era

2.

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ABMTS: TOWARDS THE SOCIALISATION OF THE LAW OF THE SEA

ABMTs are designated through international, regional or national legal instruments. The United Nations Convention on the Law of the Sea (UNCLOS)13 sets out the legal basis to designate ABMTs, urging States to take measures to protect and preserve the marine environment.14 In establishing ABMTs, States implement their general obligation to protect the marine environment, which constitutes a common concern of humanity. However, the zonal and sectoral approaches in UNCLOS have so far been criticised as they ignore the interactions between species, maritime activities and global threats.15 In addition, increasing concern regarding solving new threats to the marine environment and its biodiversity, such as climate change, loss of biodiversity and marine pollution, left no choice other than to fill this gap. Talking about socialisation in an international society marked by individual States’ sovereignty may be prohibitive. It has to be stressed that socialisation does not refer to a new concept in international law. It is a way to define a process that strikes a balance between common interests and the particular interests of individual States16 to turn towards the former, and where cooperation is thereby deepened and solidarity enhanced. It comprises three elements: promoting common interests, developing cooperation and empowering relevant stakeholders. First, in promoting common interests, the constant updating of environmental requirements in ocean governance has established a new paradigm for protecting and conserving the marine environment and its resources. This is the case for the integration of the precautionary approach in ocean governance. Absent from the wording of UNCLOS, the precautionary approach forms an integral component of ocean governance nowadays.17 The adoption of the Agenda 21, Chapter 17 on ‘Protection of the Oceans and all kinds of seas’ urged the need to establish new approaches to protection and conservation 13 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, 1833 UNTS 397. 14 Part XII UNCLOS. 15 Y Tanaka, ‘Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a Dual Approach in International Law of the Sea’ (2004) 19 IJMCL 483, 486–8. 16 Schücking (n 7). 17 K Scott, ‘Integrated Oceans Management. A New Frontier in Marine Environmental Protection’ in A Oude Elferink, K Scott and T Stephens (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 463, 482. See generally, S Marr, The Precautionary Principle and the Law of the Sea: Modern Decision-making in International Law (Kluwer Law International 2003).

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The future of environmental law

which are ‘integrated in content and are precautionary and anticipatory in ambit’.18 The precautionary approach intends to guide ‘States’ behaviour towards preservation in the face of scientific uncertainty’.19 ABMTs, such as marine-protected areas (MPAs), can be designated to implement the precautionary approach. Through that process, States refrain from conducting or limiting certain activities for the shared interest of protecting the marine environment. Therefore, States sacrifice a bit of their interest to reach a common interest by accepting to limit their rights by establishing MPAs, for example, and adopting conservation measures for fish stocks to recover. Then, the element of cooperation and empowerment of stakeholders could be linked to the integrated and ecosystem-based approach. The ecosystem approach encompasses three core elements: holistic management of human activities; scientific knowledge of ecosystems’ structure, components and dynamics; and consideration of humans as part of the ecosystem.20 On the other hand, the integrated approach ‘aims to integrate the management of activities that impact upon or affect the oceans across sectors, space and time under a unified over-arching vision’.21 The establishment of ABMTs, such as MPAs, has shifted the protection and conservation of marine environment and biodiversity towards an integrated, holistic ecosystem approach by gathering a range of stakeholders, from coastal States to fishing/mining entities and non-State actors, to embrace all interests within the area. Thus, MPAs allow the balance of interests through the participation and empowerment of relevant stakeholders in a given maritime area of conservation. ABMTs are considered an essential tool to deal with current challenges of common concern. However, some challenges remain.

3.

CURRENT AND FUTURE CHALLENGES CONCERNING ABMTS

ABMTs allow the establishment of proper ocean governance. Their implementation is confronted with some challenges, especially regarding the

18 Agenda 21, Chapter 21, para 1. See PW Birnie, AE Boyle and C Redgwell, International Law and the environment (3 edn, Oxford University Press 2009), 384. 19 N Matz-Luck and J Fuchs, ‘Marine Living Resources’ in D Rothwell, A Oude Elferink and K Scott (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 491, 495. 20 IU Jakobsen, Marine Protected Areas in International Law: An Arctic Perspective (Vol 25, Brill 2016), 108. 21 Scott (n 17), 465. See also, A Underdal, ‘Integrated Marine Policy: What? Why? How?’ (1980) 4 Marine Policy 159.

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balance between various interests and the level of participation of relevant stakeholders. 3.1

Balancing Interests: Between Integrated, Zonal and Sectoral Approaches

First and foremost, there is a divergence between interests protected by the law of the sea and those protected by environmental law.22 The UNCLOS aims to establish a ‘legal order for the seas and oceans [to] facilitate international communication, and […] promote the peaceful uses of the seas and oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment’.23 To that extent, the law of the sea divides the oceans into zones with different jurisdiction rules and distinguishes the legal regime of each activity at sea. On the other hand, environmental law considers the marine environment as interconnected. ABMTs were established to deal with this divergence.24 Still, they are confronted with the preeminence of the freedom of the sea and the States’ rights thereof. Sectoral activities (shipping, fishing, bioprospecting, seabed mining and geoengineering) are increasing in scope and intensity in the oceans. They imply competing uses of space and resources and overlapping potentially incompatible activities. To establish a proper ecosystem-based and integrated management, it is essential to consider the vertical and horizontal distribution of biodiversity and the interdependence between all the marine ecosystem components, the so-called ocean connectivity.25 Concerning horizontal connectivity, the conservation and sustainable use of straddling fish stocks in areas beyond national jurisdiction (ABNJ) is an outstanding example. UNCLOS establishes an obligation of cooperation between States involved in exploiting and conserving such stocks, albeit that the lack

22 P Ricard, ‘Les aires marines protégées en haute mer et la difficile conciliation entre droit de la mer et droit de l’environnement’ in P Chaumette (ed), Transforming the Ocean Law by Requirement of the Marine Environment Conservation /Le Droit de l’Océan transformé par l’exigence de conservation de l’environnement marin (Marcial Pons 2019) 249, 251. 23 UNCLOS, Preamble. 24 For example, MPAs are established from no-take regulation to areas allowing for sustainable use by allowing certain activities to take place in the protected area depending on the specificity of the area and the interests involved. 25 See A Rogers et al, The High Seas and Us: Understanding the Value of High-Seas Ecosystems (The Global Ocean Commission 2014); E Popova et al, ‘Ecological Connectivity between the Areas Beyond National Jurisdiction and Coastal Waters: Safeguarding Interests of Coastal Communities in Developing Countries’ (2019) 104 Marine Policy 90.

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The future of environmental law

of overarching governance in ABNJ and the state of decentralisation of ocean governance seriously challenges their conservation and sustainable use. Most distant water fishing nations are not member of relevant competent regional fisheries management organisations (RFMOs) or regional fisheries bodies (RFBs) corresponding to their fishing area, increasing free-riding practices. When competent RFMOs or RFBs designate an ABMT, free-riding practices reduce the efforts of members to protect and conserve the marine environment and biodiversity. Two solutions can be considered: creating a global body or a global cooperation mechanism between States, international organisations and other non-State actors; and strengthening sectoral and regional governance. The former would be difficult to establish and will not be cost-effective – in fact, several organisations and platforms26 exist already – unless their competencies are strengthened. The latter is likely to lead to greater decentralisation and thus the fragmentation of ocean governance. Regarding vertical zoning, it has been established that shipping, fishing, geoengineering, bioprospecting, cable laying and mining activities affect the marine environment. However, the regulations of those activities are sectoral-defined, and there is no or little consideration of their interconnection. UNCLOS gives a mandate to specific bodies to designate and implement protected areas for a specific maritime activity.27 In a given area, multiple jurisdictions could overlap, creating difficulties for designation or management.28 Proper ocean governance requires linkage between sector-specific approaches, responding to different conservation needs. Therefore, ABMTs should encompass all activities in all parts of the area concerned to be effective and efficient. Moreover, established tools should 26 This is, for example, the case of the Meeting of State Parties to the law of the sea (article 319 UNCLOS), which could be a ‘supreme organ’ to oversee the implementation and development of UNCLOS if its functions are clarified and its inclusiveness enhanced to consider the participation of non-State actors. See J Harrison, ‘The Law of the Sea Convention Institutions’ in D Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 372. Indeed, the States Parties of the Law of the Sea Rules of Procedure does not specify clear nature and functions of the Meeting of the Parties. See SPLOS Rules of Procedure, Doc SPLOS/2/Rev (24 January 2005). 27 Depending on the conferral of competence by member States, regional sea conventions can establish an MPA to protect the marine environment, such as the OSPAR Commission. Protected areas (PAs) and particularly sensitive sea areas (PSSAs) can be designated under the auspices of the International Maritime Organisation (IMO). PAs and PSSAs are established for ecological, socio-economic or scientific reasons but the measures concern mainly shipping activities (routeing measures, installation of Vessel Traffic Services or VTS). 28 Jon Day et al, Guidelines for Applying the IUCN Protected Area Management Categories to Marine Protected Areas (2nd edition, 2019) 20.

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promote the participation and empowerment of relevant stakeholders, but first and foremost States, whose jurisdiction is crucial to implement and enforce conservation measures. 3.2

Widening the Involvement of Stakeholders

Despite the existence of a general obligation on States to protect the marine environment, States cannot unilaterally adopt ABMTs without considering the rights of other States. This is acute concerning ABMTs, regarding States’ obligation to cooperate directly or via international organisations for the conservation and sustainable use of biodiversity.29 But a question remains: to what extent should States cooperate? First, the interconnected nature of the ocean means that even countries remote from the ABMTs feel the adverse effects of maritime activities conducted in a particular maritime zone.30 This is the case for small island developing countries or developing countries whose coastal communities rely on the marine ecosystem for nutrition, livelihoods and public revenues even as sea levels rise.31 The effectiveness of monitoring, control and surveillance systems is critical for protecting and conserving the marine environment and biodiversity. Due to the distances involved, establishing proper monitoring, control and surveillance in the ABNJ is quite challenging, and it requires an adequate plan and support from all stakeholders.32 As for management and monitoring, there is a focus on species of commercial importance without a systemic approach to minimise the impacts on specific activities in ABNJ.33 Expanding this system to the entire ecosystem through cooperation, collaboration and pooling of technical and financial means between different stakeholders is significant. Whereas global and sectoral legal instruments contain some

Article 197 UNCLOS and article 5 CBD. See for example, Popova et al (n 25); BC O’Leary and CM Roberts, ‘Ecological Connectivity across Ocean Depths: Implications for Protected Area Design’ (2018) 15 Global Ecology and Conservation e00431; UNEP, Connectivity: A Critical Biodiversity Consideration in Global Ocean Sustainability (UNEP 2019). 31 G Wright et al, ‘High Hopes for the High Seas: Beyond the Package Deal towards an Ambitious Treaty’ (2019) Institute for Sustainable Development and International Relations Issue Brief 1, 4, accessible on www​.iddri​.org/​sites/​default/​files/​ PDF/​Publications/​Catalogue​%20Iddri/​D​%C3​%A9cryptage/​0005​-Iddri​-IB0919​_8aout​ .pdf. 32 See T Agardy, GN di Sciara and P Christie, ‘Mind the Gap: Addressing the Shortcomings of Marine Protected Areas through Large Scale Marine Spatial Planning’ (2011) 35 Marine Policy 226. 33 G Ortuño Crespo et al, ‘High-seas Fish Biodiversity Is Slipping through the Governance Net’ (2019) 3 Nature Ecology & Evolution 1273. 29 30

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The future of environmental law

monitoring, control and surveillance provisions, there is no clear legal regime to make such a system effective. The involvement of stakeholders in the planning process is lacking, and inadequate attention is paid to compliance when it comes to resources dedicated to surveillance and enforcement. In that regard, there is a need to establish and/or consolidate proper monitoring, control and surveillance principles: transparency, access to data, cooperation, coordination and reporting.34 Then, looking at the institutional framework, the State’s pre-eminent role is a recurrent problem in international law and the law of the sea in particular. In part, this is because the implementation and enforcement of international obligations depends on States’ jurisdiction and willingness to act, which is not always present. The integration of environmental requirements in ocean governance introduced the involvement of a broader range of stakeholders. They can be distinguished as direct and distant stakeholders. Direct stakeholders could be defined through different criteria, such as the geographical location and/or scope of the area in question, active sector, biodiversity features and potential management actions to be taken. This is, for example, the case with coastal States whose waters are directly impacted by the establishment and management of the ABMTs. Distant stakeholders could be involved in establishing ABMTs to render effective their implementation and enforcement. Such ‘distant stakeholders are States exercising freedoms under UNCLOS, non-governmental organisations, corporations, civil society, indigenous peoples’ organisations or even individuals that are not directly impacted by ABMTs’.35 The main question now is how to empower those stakeholders to enhance coherent governance.

4.

THE PROMOTION OF A MULTI-SECTORAL APPROACH, A WORK IN PROGRESS

The ABMTs were intended to manifest the ecosystem approach, but it appears that sectoral and partially protected areas are more effectively implemented than general ABMTs. Therefore, how can the law of the sea promote

34 The cooperation and coordination ‘increase the sharing of knowledge, intelligence, data, capacity and best practices, which can ultimately lead to better compliance and enforcement outcomes’. See K Cremers, G Wright and J Rochette, ‘Strengthening Monitoring, Control and Surveillance through a New Marine Biodiversity Treaty’ [2020] STRONG High Seas Project, 7. See concerning fisheries management, D Erceg, ‘Deterring IUU Fishing through State Control over Nationals’ (2006) 30 Marine Policy 173, 173–9. 35 See UNEP-WCMC (n 11) 31.

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multi-sectoral governance in line with the ecosystem-based and integrated approach? Article 197 UNCLOS establishes States as core actors concerning the protection and conservation of the marine environment and biodiversity. However, the involvement of other stakeholders36 was emphasised to ‘strengthen cooperation, policy coherence and coordination among institutions at all levels, including between and among international organisations, regional and sub-regional organisations and institutions, arrangements and programmes’.37 The Draft new international legally binding instrument on biodiversity beyond national jurisdiction (Draft BBNJ) under the auspices of the United Nations38 promotes ABMTs as tools for comprehensive and coherent protection of marine ecosystems. The Draft BBNJ aims to establish a clear legal framework, promote cross-sectoral management, reinforce the duty to protect the marine environment through ABMTs and enhance stakeholders’ involvement in creating and managing ABMTs. The United Nations General Assembly stressed the importance of cooperation and coordination among relevant actors in its Resolution in 2017.39 And it is reflected, for example, in article 17 of the Draft BBNJ, which promotes inclusiveness in developing a proposal for ABMTs through the collaboration between states, global, regional, subregional and sectoral bodies, as well as civil society, the scientific community, the private sector, Indigenous Peoples and local communities. While a legally binding instrument has not yet entered into force, some initiatives already exist and should be seen as a model of the socialisation process at work in the law of the sea. This is the case with several regional regimes, such as the governance of the Sargasso Sea, the Central Arctic Ocean and the collective agreement in the North-East Atlantic.

36 See R Lee, ‘Promoting the Conservation and Sustainable Use of the Oceans through Cooperative Decision-Making’ in MH Nordquist, JN Moore and R Long (eds), The Marine Environment and United Nations Sustainable Development Goal 14: Life Beyond Water (Brill 2018) 25, 27. 37 UNGA Res 312 (2017), Our Ocean, Our Future: Call for Action Resolution, UN Doc A/RES/71/312, para 31(b). 38 See Draft Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (Advanced, unedited, pending renumbering) (4 March 2023), available at https://​www​.un​.org/​bbnj/​ (accessed 19.04.2023). 39 UNGA Res 72/249, International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (24 December 2017) UN Doc A/RES/72/249.

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4.1

The future of environmental law

The Sargasso Sea: From Cooperation to Stewardship

The Sargasso Sea is a typical case where no specific overall organisation is in charge of protecting and conserving the marine environment and biodiversity in areas beyond national jurisdiction. However, some organisations have competence in different global and regional sectors in establishing ABMTs.40 The Sargasso Sea collaboration regime, as illustrated in the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea (Hamilton Declaration),41 emphasises the involvement of a broader range of stakeholders, including States – which could be signatories or representatives in support,42 international and regional organisations43 or non-governmental organisations,44 but also public institutions such as universities and experts. These stakeholders can participate as ‘collaborating partners’ by contributing to the conservation efforts.45 In a nutshell, this Declaration aims 40 In this area, several sectoral ABMTs were established: it was recognised as an ecologically or biologically significant marine area under the CBD (Decision XI/7 on Marine and Coastal biodiversity: ecologically or biologically significant marine areas, 2012, UNEP/CBD/COP/DEC/XI/17) and its seamount was recognised as a vulnerable marine ecosystem (VMEs). Above all, the Sargasso Sea Stewardship Plan recognised the Sargasso Sea as a UNESCO World Heritage Site, and regulation of navigation through IMO could be established by designating Particular Sensitive Sea Areas (PSSAs), coordination and cooperation with ISA concerning mining activities and initiation of coordination and cooperation with relevant actors. Indeed, several organisations are involved in the governance regime of this area: the International Maritime Organization (IMO) is in charge of shipping regulations and the International Seabed Authority (ISA) oversees regulations for mining. Concerning fisheries, the Northwest Atlantic Fisheries Organization (NAFO) is mandated in the conservation and management of marine living resources. 41 Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, Bermuda, 11 March 2014, reproduced in D Freestone and KK Morrison, ‘The Sargasso Sea: The Signing of the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea – A New Paradigm for High Seas Conservation?’ in D Freestone (ed), Conserving Biodiversity in Areas beyond National Jurisdiction (Brill 2014) 159, 168–76. 42 The Government of Azores, Bermuda, Monaco, the United Kingdom and the United States signed the Declaration. Several representatives of governments such as the Bahamas, the British Virgin Islands, the Netherlands, South Africa, Sweden and the Turks and Caicos Islands declared support for the Declaration. 43 Secretariats of the Oslo and Paris Commission (OSPAR), the International Seabed Authority, the Inter-American Convention for the Conservation of Atlantic Sea Turtles and the Convention on Migratory Species have the status of observer. 44 The International Union for the Conservation of Nature (IUCN) has the status of observer. 45 K Gjerde et al, ‘Area-Based Management Tools in Marine Areas Beyond National Jurisdiction: Building Ambition, Broadening Participation and Planning

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at creating a synergy between these different actors through the Sargasso Sea Commission’s stewardship role.46 The Commission ‘provides a framework for intergovernmental collaboration to promote measures, through existing international organisations, to minimise the adverse effects of human activities in an ecosystem that is primarily in areas beyond national jurisdiction’.47 This is done, for example, through the establishment of a stewardship plan with the involvement of different competent bodies: fishing (International Commission for the Conservation of Atlantic Tunas or ICCAT), navigation (IMO) or mining (International Seabed Authority or ISA), with the initiation of coordination and cooperation between them.48 Additionally, one of the Sargasso Sea governance specifications is in establishing a public–private partnership to enhance collaborative ocean governance. The Sargasso Sea Alliance was established to provide a means of a partnership between the Government of Bermuda, scientists, marine conservation groups and private actors. Whereas it is funded by private donors, the Sargasso Sea Alliance is led by the Government of Bermuda. At a time when global environmental issues go beyond the particular or collective interest of States, this process of stewardship illustrates the socialisation of the law of the sea. It is illustrated through collaboration between a broader range of stakeholders than the proper coastal States and distant water fishing nations, such as under the UNCLOS. 4.2

Beyond States: International Organisations’ Cooperation in the North-East Atlantic Fisheries Governance

Establishing a robust and holistic approach to ocean governance in areas beyond national jurisdiction ‘requires profound institutional reform – something that States appear to be set against’.49 Although a decentralised approach is more realistic than creating another global organisation dealing with ocean governance, such a governance model requires cooperation between different institutions that are competent to deal with activities and/or conservation of the marine environment and biodiversity in a specific area.

Ahead’, IUCN Workshop Report (8–10 October 2019, Gland, Switzerland) (IUCN 2020) 9. 46 Hamilton Declaration, para. 6 and Annex II. 47 Freestone and Morrison (n 41) 160. 48 For an overview of the Commission’s Work Programs and their development, see www​.sargassoseacom mission.org. 49 Barnes (n 9) 120.

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This is the case for the Collective Arrangement between the OSPAR Commission and the NEAFC in the North-East Atlantic.50 This Arrangement recognises respective competencies and areas of shared concern and establishes processes for sharing information, joint discussions and common approaches to fulfil the objectives established for specific areas.51 This collaboration between international organisations with different mandates can enhance coherence and consistency in ocean governance. For example, through their complementarity, the NEAFC can adopt binding fishing management measures, such as fisheries closures. At the same time, OSPAR, with an environmental mandate, does not have enough power to regulate human activities. On the other hand, OSPAR can adopt an MPA network to protect the marine environment, while NEAFC is limited to adopting conservation measures related to fisheries.52 In addition, annual meetings bring together the secretariats of both organisations, representatives of Contracting parties, observers from other competent international organisations and non-governmental organisations, which open up a space for broader participation of different stakeholders, and promote cross-sectoral cooperation and coordination. However, some challenges remain. The first challenge is related to coordination on the institutional level. Each organisation’s different mandates and members make it challenging to conciliate and establish effective ecosystem-based management53 and proper governance.54 Second, though cooperation and coordination are possible, such a process could be time and labour intensive regarding ‘different levels of technical scrutiny and sometimes complex and mutually incompatible annual meeting cycles’.55 Finally, this collaboration is directed only at the Secretariat level of international organisations and thus is not binding on members and lacks application to distant water nations from outside the region.56

50 Collective Arrangement between Competent International Organizations on Cooperation and Coordination regarding Selected Areas in Areas Beyond National Jurisdiction in the North-East Atlantic, OSPAR Agreement 2014-09, accessible at www​.ospar​.org/​documents​?v​=​33030. 51 Collective Arrangement, paras 2, 5 and 6. 52 See I Kvalvik, ‘Managing Institutional Overlap in the Protection of Marine Ecosystems on the High Seas - The Case of the North East Atlantic’ (2012) 56 Ocean & Coastal Management 35. 53 Wright et al (n 31). 54 Cremers, Wright and Rochette (n 34) 6. 55 See concerning the relationship between IMO and ISA. G Wright and J Rochette, ‘Regional Ocean Governance of Areas beyond National Jurisdiction: Lessons Learnt and Ways Forward’ [2019] STRONG High Seas Project. 56 D Diz et al, ‘Mainstreaming Marine Biodiversity into the SDGs: The Role of Other Effective Area-based Conservation Measures’ (2018) 93 Marine Policy 251, 259.

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4.3

27

Managing to Last: Highlights on the New International Legally Binding Instrument

As seen before, proper ecosystem-based management through AMBTs should be based on the guiding principles of environmental law, the best available science and inclusive and participatory processes. Re-imagining comprehensive and coherent protection of marine ecosystems is, therefore, crucial. This could be done by enhancing the power of organisations having the mandate to designate and implement sector-specific ABMTs, creating a platform of cooperation of such organisations (vertically and horizontally)57 and establishing enabling cross-sectoral ABMTs. To a certain extent, the new BBNJ Agreement is seen as the best opportunity to grapple with the ocean governance gap. It is intended to ‘complement and strengthen the existing framework and prevent the adoption of weaker or dissonant management measures’.58 However, do the actual negotiations come up to these expectations? First, the Draft BBNJ provides for a Conference of Parties that shall make recommendations and take decisions on the establishment of ABMTs, based on a comprehensive, multi sector, ecosystem view of the marine environment. The Conference of the Parties could be the central body of coordination,59 as it was with regard to the amendment or revocation of ABMTs, considering changes in circumstances based on the best knowledge available. To enhance coherence and compatibility, identical goals, principles and standards could be established for all ABMTs.60 Then, regional governance was recognised as the ‘cornerstone of international environmental law to consider local circumstances, challenges, and needs’.61 Therefore, the empowerment of such bodies and entities is critical in ocean governance. To ensure coherence and complementarity, two alternatives were possible: on the one hand, the establishment of new ABMTs and the adoption of conservation and management – or sustainable use – measures within the existing organisation; on the other hand, the establishment of a new instrument, framework or body with the necessary mandate to establish ABMTs. It is worth stressing that creating a new body will not be

See Article 17 of the Draft ILBI-BBNJ. Ortuño Crespo et al (n 33) 1273. 59 Delfour-Samama (n 12); KN Scott, ‘Protecting the Commons in the Polar South: Progress and Prospects for Marine Protected Areas in the Antarctic’ in K Zou (ed), Global Commons and the Law of the Sea (Brill 2018) 326, 340. 60 UNEP-WCMC (n 11) 30. 61 Wright et al (n 31). 57 58

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a cost-effective or time-efficient use of resources.62 Therefore, another alternative would be for the new ILBI to strengthen the obligation of States parties to ‘have a more biodiversity-inclusive, integrated and ecosystem-based approach to management’ while cooperating through global, regional and sector-based organisations.63 The Draft BBNJ does promote the role of the Conference of the Parties in promoting coherence between existing efforts and new intitiatives regarding the establishment of ABMTs. For example, existing competent bodies shall be consulted and given the opportunity to express their view on matters that fall within their competence.64 Finally, dynamic ocean management ‘which responds to changes in ecosystems in near real-time’ could ‘provide a more comprehensive and nimble management of the various components of biodiversity and ecosystems as their distribution changes over time’.65 However, such a system will require corresponding technology applications and available data. The case of dynamic closures was also considered a management tool to cope with the ever-changing situation of fisheries due to climate change’s adverse effects.66 The primary limits of such governance alternatives concern access to and accuracy of data and questions regarding intellectual property. A general obligation should be established to facilitate access to data and information for mapping species distribution through electronic monitoring and predicting to create a tailored management scenario across ocean sectors and jurisdictions.67

5. CONCLUSION ABMTs are crucial in addressing unprecedented, rapid and uncertain changes under the Anthropocene. These tools allow for conservation of the marine

Gjerde et al (n 45) 17. Ibid. 64 Article 18(2)(b) Draft BBNJ. 65 Guillermo O Crespo, ‘Tools and Technologies for Managing at Ecosystem-scale in a Changing Ocean’ in ibid, 12. 66 This was the case with the governance of the Gulf of Saint Laurent, where static and dynamic measures were established through the Fisheries Act and the Shipping Act. On the one hand, the Fisheries Act establishes dynamic closures when whales are sighted. On the other hand, the Shipping Act provides for a dynamic corridor that establishes a seasonal slowdown area that could be subject to voluntary and/or mandatory speed limit system and closures in certain areas, except for coastal vessels. See O Koubrak, DL VanderZwaag and B Worm, ‘Saving the North Atlantic Right Whale in a Changing Ocean: Gauging Scientific and Law and Policy Responses’ (2021) 200 Ocean & Coastal Management 105. 67 Concerning the governance of the Arctic Ocean, for example, see DR Rothwell, ‘Polar Oceans Governance in the 21st Century’ (2012) 26 Ocean Yearbook 343, 359. 62 63

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environment and biodiversity as a common concern, which develops cooperation and collaboration, taking into account all interests at stake. Broad and deep cooperation helps to establish an adaptive and sustainable conservation regime. The examples given to date highlight that innovative ABMTs are still growing. Whereas the future BBNJ Agreement has a role in shaping the global regime of ABMTs in ABNJ, a continuing balance between the global and regional levels is fundamental to establish equitable and effective ocean governance.

3. An insufficient tool for sustainable development: limitations of systemic integration under Article 31(3)(c) of the Vienna Convention on the Law of Treaties Kazuki Hagiwara1 1.

INTRODUCTION: SUSTAINABLE DEVELOPMENT AND SYSTEMIC INTEGRATION

Sustainable development has been considered a guiding motivation of modern international law.2 The concept of sustainable development has been elaborated in the outcome documents of a series of United Nations (UN) conferences.3 Those documents are not legally binding but ‘reflect in any event an international understanding of what conduct should be pursued by States with

1 The author would like to thank the reviewers for their comments. This work was supported by JSPS KAKENHI Grant Number JP17H02456. 2 Thomas A. Mensah, ‘Using Judicial Bodies for the Implementation and Enforcement of International Environmental Law’ in Isabelle Buffard et al (eds), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner (Martinus Nijhoff, The Hague 2008) 797, 798. 3 ‘Rio Declaration on Environment and Development’, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, Volume I, A/CONF.151/26/Rev. l (Vol. I) 3–8 https://​ digitallibrary​ .un​ .org/​ record/​ 160453 accessed 10 June 2022; ‘Johannesburg Declaration on Sustainable Development’, Report of the World Summit on Sustainable Development, A/ CONF.199/20 (2002) 1–5 https://​digitallibrary​.un​.org/​record/​478154 accessed 10 June 2022; ‘Outcome of the Conference: The Future We Want’, United Nations Conference on Sustainable Development, A/CONF.216/L.1 (2012) 1–53 https://​digitallibrary​.un​ .org/​record/​3826773 accessed 10 June 2022.

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a view to reaching the specific goals universally approved’.4 The UN Summit in 2015 adopted the 2030 Agenda,5 which reviewed the achievements and the remaining issues under the 2001 Millennium Development Goals and set 17 goals and 168 targets for sustainable development to be accomplished by 2030.6 It addresses various issues broadly, based on the idea that a comprehensive approach to tackling development issues from three perspectives – economy, environment and social welfare – is desirable.7 This approach requires reconciliation between conflicting values or policies, such as those related to economic development and environmental protection.8 The need for reconciliation for sustainable development also implies the need for normative integration. The New Delhi Declaration adopted by the International Law Association in 2002 enumerated the principles for sustainable development and prescribed the guiding principle of integration as the need for normative integration in international law: ‘The principle of integration reflects the interdependence of social, economic, financial, environmental and human rights aspects of principles and rules of international law relating to sustainable development as well as of the interdependence of the needs of current and future generations of humankind.’9 Normative integration overlaps with systemic integration as a prescription for the fragmentation of international law.10 As such, harmony in economic 4 Christian Tomuschat, ‘The Concluding Documents of World Order Conferences’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubiszewski (Kluwer Law International, The Hague 1996) 563, 563. 5 Transforming Our World: The 2030 Agenda for Sustainable Development, UN General Assembly A/70/L/1, 18 September 2015 www​.un​.org/​en/​development/​desa/​ population/​migration/​generalassembly/​docs/​globalcompact/​A​_RES​_70​_1​_E​.pdf> accessed 10 June 2022. 6 ibid 1. 7 ibid 2. 8 Case concerning Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Merits) [1997] ICJ Rep. 7 [140] (Gabčíkovo-Nagymaros Project). 9 International Law Association 2002, New Delhi Declaration on the Principles of International Law Related to Sustainable Development (London: ILA, 2002) [7.1]. See also Akiho Shibata and Romain Chuffart, ‘Sustainability as an Integrative Principle: The Role of International Law in Arctic Resource Development’ (2020) 56 Polar Record e37 1, 5 www​.cambridge​.org/​core/​journals/​polar​-record/​article/​sustainability​-as​-an​ -integrative​-principle​-the​-role​-of​-international​-law​-in​-arctic​-resource​-development/​12​ 821D31DCE26184958FDE3267B363FA accessed 10 June 2022. 10 Martti Koskenniemi, Study Group of the International Law Commission, ‘Fragmentation of International Law, Difficulties Arising from the Diversification and Expansion of International Law’, A/CN.4/L.628, 13 April 2006 1, 211 [420] (Koskenniemi, Fragmentation) https://​legal​.un​.org/​docs/​?symbol​=​A/​CN​.4/​L​.682 accessed 10 June 2022. However, see International Law Commission, Report of the

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development, environmental protection and social welfare for sustainable development may be achieved through the systemic integration embodied in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), which provides: ‘3. There shall be taken into account, together with the context […] (c) Any relevant rules of international law applicable in the relations between the parties.’11 Addressing the question of reconciliation between environmental protection and development, the usefulness of that provision in the context of sustainable development was identified even prior to the project regarding the fragmentation of international law conducted by the International Law Commission (ILC) Study Group.12 Systemic integration points to the need to refer to the normative environment, namely, general international law and other relevant rules of international law;13 it requires ‘the integration into the process of legal reasoning – including reasoning by courts and tribunals – of a sense of coherence and meaningfulness’.14 Thus, ‘the interpretation of each individual provision must be woven into the broader fabric not only of the treaty as a whole, but of the wider legal system’.15 However, the scope of external legal rules to be considered under Article 31(3)(c) has been controversial, and the application of that provision remains vague.16 This study analyses the international jurisprudence addressing sustainable development and scholarly research to illustrate the scope of systemic integration under Article 31(3)(c). The following sections aim to prove that the provision confines the scope of rules which interpreters can refer to by the requirements of the identical membership to be bound and the resemblance of the rules to be referred. Thus, these shortcomings may impair the significance of Article 31(3)(c) in achieving sustainable development.

Study Group on Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, A/CN.4/L.676, 29 July 2005 1, 12 [28] (stating that ‘The provision was not a panacea in reducing fragmentation, however’) (Report of the Study Group) https://​legal​.un​.org/​docs/​?symbol​=​A/​CN​.4/​L​ .676 accessed 10 June 2022. 11 1155 UNTS 331. 12 See Philippe Sands, ‘Treaty, Custom and the Cross-fertilization of International Law’ (1998) 1 Yale Human Rights and Development Law Journal 85, 85–106. 13 Koskenniemi, Fragmentation (n 10) 209 [415]. 14 ibid 211 [419]. 15 Michael Bowman, ‘“Normalizing” the International Convention for the Regulation of Whaling’ (2008) 29(3) Michigan Journal of International Law 293, 343. 16 See e.g. Philippe Sands and Jeffery Commission, ‘Treaty, Custom and Time: Interpretation/Application?’ in Malgosia Fitzmaurice, Olufemi Elias and Panos Merkouris (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Martinus Nijhoff, Leiden 2010) 39, 39–58.

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This study focuses on the codified systemic integration under Article 31(3) (c) and explores the scope and limitations of this provision in achieving sustainable development.17 It is noteworthy that references to other rules of international law in treaty interpretation may not be exclusively embodied in Article 31(3)(c).18 Although the rules of treaty interpretation under Articles 31 and 32 of the VCLT are a codification of relevant existing customary rules,19 international jurisprudence indicates that uncodified methods remain for interpreters to refer to a broader normative environment. For instance, a broader in pari materia interpretation is not codified, at least, in Article 31(3)(c).20 17 However, the objective of sustainable development as such also can equip an interpretational function. In this respect, see Virginie Barral, ‘Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm’ (2012) 23(2) European Journal of International Law 377, 393–7. Moreover, on sustainable development as an interstitial norm, see Vaughan Lowe, ‘The Politics of Law-making: Are the Method and Character of Norm Creation Changing?’ in Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford University Press, Oxford 2000) 207, 215–16; Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press, Oxford 2001) 19, 31. 18 See the discussion below Section 2. 19 Commentary to Draft Conclusion 1, Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties (2013) II (2) Yearbook of the International Law Commission 18–19 [4] and footnotes 26–33. 20 For instance, the Permanent Court of International Justice referred to ‘many arbitration treaties’ in order to clarify the meaning ‘any dispute whatsoever […] which may arise’ that should be submitted to the Court under Article 26 of the Mandate. The Mavrommatis Palestine Concessions (Objection to the Jurisdiction of the Court) PCIJ Rep Series A No. 2 35. The International Court of Justice (ICJ or Court), to establish the meaning of the term ‘dispute’, referred to several similar bilateral treaties concluded between Morocco and several other countries, not between the parties to the dispute, namely France and the US: Case Concerning Rights of Nationals of the United States of America in Morocco (France v United States of America) (Merits) [1952] ICJ Rep 176, 189. Fitzmaurice considered the latter case as an instance where the Court applied contemporaneous interpretation: Sir Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’ (1957) 33 British Yearbook of International Law 203, 225–6. The in pari materia interpretation may be elaborated under Articles 31(1) and/or 32 of the VCLT. On the outline of in pari materia interpretation, see e.g., Paula F. Henin, ‘In Pari Materia Interpretation in Treaty Law’, in Joseph Klingler, Yuri Parkhomenko, et al. (eds), Between the Lines of the Vienna Convention? Canons and Other Principles of Interpretation in Public International Law (Kluwer Law International, Alphen aan den Rijn 2018) 211, 211ff, esp. 231; Panos Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration: Normative Shadows in Plato’s Cave (Brill Nijhoff, Leiden 2015) 51–95; Hans Aufricht, ‘Supersession of Treaties in International Law’ (1952) 37 Cornell Law Review 655.

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Before turning to analysis of the scope of Article 31(3)(c), Section 2 describes the evolutive factors in treaty interpretation that are significant for sustainable development, but are not certainly codified under Article 31(3) (c). Section 3 examines the limited scope of the provision and its ambiguity in application. Sub-section 3.1 reviews opposing views on the functional significance of Article 31(3)(c) and Sub-sections 3.2, 3.3 and 3.4 inspect the scope of each condition under that provision, namely ‘parties’, ‘rules of international law’ and ‘relevance’. Sub-section 3.5 sheds light on the relation between the scope of Article 31(3)(c) and the choice of applicable law in international adjudication.

2.

EVOLUTIVE ELEMENTS AND ARTICLE 31(3)(C)

The treaty interpretation in the VCLT aims to establish ‘the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.21 The ‘ordinary meaning’ of a term does not imply that the aim of treaty interpretation is to find an inherent meaning of the term; rather, the meaning of a term should be determined through interpretation in light of the context and the object and purpose of the treaty.22 This suggests that the same word may have different meanings in different treaties and in different contexts.23 The basic approach of treaty interpretation is contemporaneity, which calls upon interpreters to refer to the normative environment at the time of conclu-

21 Article 31(1) of the VCLT. On the relation with Article 31(3)(c), see Vattenfall v Germany, ICSID Case No. ARB/12/12, Decision on the Achmea issue, 31 August 2018, [153] www​.italaw​.com/​sites/​default/​files/​case​-documents/​italaw9916​.pdf accessed 10 June 2022 (Achmea Decision), stating as follows: ‘The Tribunal notes that the correct starting point for the interpretation of Article 26 ECT is the general rule of interpretation in Article 31(1) VCLT, i.e., “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose”. Article 31(3)(c) is not the starting point of the interpretation exercise under the VCLT.’ 22 In this regard, Venzke referred to Walkdock’s view, see Ingo Venzke, ‘Sources in Interpretation Theories: The International Law-Making Process’ in Samantha Besson and Jean d’Aspremont (eds), The Oxford Handbook of the Sources of International Law (Oxford University Press, Oxford 2018) 401, 404. 23 MOX Plant Case (Ireland v United Kingdom), Provisional Measures (2001), (International Tribunal for the Law of the Sea) [51] www​.itlos​.org/​fileadmin/​itlos/​ documents/​cases/​case​_no​_10/​published/​C10​-O​-3​_dec​_01​.pdf accessed 10 June 2022. From the perspective of a parallelism of treaties, see Separate Opinion of Judge Wolfrum. MOX Plant Case (Ireland v United Kingdom) (Separate Opinion of Judge Wolfrum) 131, 131–2 www​.itlos​.org/​fileadmin/​itlos/​documents/​cases/​case​_no​_10/​ published/​C10​-O​-3​_dec​_01​-SO​_W​.pdf accessed 10 June 2022.

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sion in interpreting a treaty term; therefore, the evolutive or dynamic approach or ‘mobile reference’,24 by which interpreters can consider the up-to-date normative environment at the time of interpretation/application, is exceptional.25 These contemporaneous and evolutionary approaches in treaty interpretation have been addressed under the issue of intertemporal law. The drafting history of Article 31(3)(c) indicates that that provision is rooted in a draft article dealing with the question of intertemporal law.26 However, during the project of the codification, these two temporal elements were removed from the text and only the element of reference to international law was marooned in the text.27 The elimination of the temporal elements from the text made the problem of determining what ‘rules of international law’ are to be referred to by interpreters even more convoluted.28 Of these temporal elements, it may be preferable for interpreters to consider the newly developed legal rules reflecting up-to-date social circumstances and

24 Gabčíkovo-Nagymaros Project (n 8) (Separate Opinion of Judge Bedjaoui) [1997] ICJ Rep 120, 122 [8]. 25 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Merits) [2009] ICJ Rep 214 [63] (Navigational and Related Rights Case). See also Award in the Arbitration Regarding the Iron Rhine (‘IJzeren Rijn’) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands (2005) [80] (Permanent Court of Arbitration), (Arbitrators: Rosalyn Higgins, Guy Schrans, Bruno Simma, Alfred H.A. Soons, Peter Tomka), https://​pcacases​.com/​web/​sendAttach/​477 accessed 10 June 2022 (Iron Rhine Arbitration). 26 Draft Article 56, Sir Humphrey Waldock, Special Rapporteur, Third report on the law of treaties (Document A/CN.4/167 and Add.1-3) (1964) II Yearbook of the International Law Commission 5, 8–9 (UN, New York, 1965). 27 Redrafted Article 69 (1)(b) proposed during the 869th Meeting by Special Rapporteur Waldock simply referred to ‘the rules of international law’. Sir Humphrey Waldock, Special Rapporteur, International Law Commission, 18th Sess. 869th Mtg. A/CN.4/Sr.869, in (1966) I(2) Yearbook of the International Law Commission 179, 184 [59] (A/CN.4/SER.A/1966) (UN, New York, 1967). 28 On this point, Reuter clearly commented: ‘Was the reference to other rules of international law binding on the parties or to other rules of international law relating to the subject-matter of the treaty? That should be made clear.’ Reuter, International Law Commission, 18th Sess., 870th Mtg., A/CN.4/Sr.870, in (1966) I (2) Yearbook of the International Law Commission 185, 188 [43] (A/CN.4/SER.A/1966). Removal of the temporal elements from the text implied that ‘The question whether the terms used were intended to have a fixed content or to change in meaning with the evolution of the law could be decided only by interpreting the intention of the parties’. Sir Humphrey Waldock, Special Rapporteur, International Law Commission, 18th Sess., 872nd Mtg. A/CN.4/Sr.872, in (1966) I (2) Yearbook of the International Law Commission 198, 199 [9] (A/CN.4/SER.A/1966) (UN, New York, 1967).

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scientific knowledge in order to ascertain the meaning of a term in the sustainable development context. Thus, the Court also highlighted the following: Owing to new scientific insights and to a growing awareness of the risks for mankind – for present and future generations – of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past.29

In addition, along with social changes, the meaning of a term per se which is adopted in the text of a treaty at the time of its conclusion may also change at the time of application. When such a generic term – for example, ‘exhaustible natural resources’30 and ‘commerce’31 – is adopted in a treaty text, the will of the parties accepting the change of the meaning at the time of application is presumed.32 Regarding these interpretative elements, Iron Rhine Arbitration is a particular case to be considered.33 Although the approach to treaty interpretation taken by the Tribunal has been criticised from different perspectives, the Tribunal invoked Article 31(3)(c) and expanded its scope in an ingenious manner. To examine the reactivation of the Iron Rhine railway under Article XII of the 1839 Treaty of Separation, it was essential for the Tribunal to refer to evolutive interpretation under Article 31(3)(c) to inflate the ‘plain meaning’ of Article XII in terms of its effective application.34 Applying the evolutive interpretation, the Tribunal relied on the principle of effectiveness to ‘ensure an application of the treaty that would be effective in terms of its object and purpose’, not on ‘a conceptual or generic term that is in issue’.35 Moreover, the Tribunal extended the scope of material to be referred under Article 31(3) (c) and considered not only ‘rules’ but also ‘soft law’ in the field of international environmental law as ‘any relevant rules of international law applicable between the parties’.36 Such expansion may be justified through a lens of evolutive interpretation account in relation to the effective up-to-date application

Gabčíkovo-Nagymaros Project (n 8) [140]. See (n 65) below and accompanying text. 31 See Navigational and Related Rights Case (n 25) [63]–[71]. 32 See ibid [63]. See also Bowman (n 15) 459. 33 Iron Rhine Arbitration (n 25). 34 ibid [78]. 35 ibid [79] and [80]. 36 ibid [58]. 29 30

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of the 1893 Treaty of Separation.37 However, even considering the peculiarity of the development of the international environmental law, the Tribunal’s comprehensive inclusion of all these materials under Article 31(3)(c) seems to be on less firm ground.38

3.

LIMITED SCOPE OF SYSTEMIC INTEGRATION UNDER ARTICLE 31(3)(C): INSUFFICIENCY IN ACHIEVING SUSTAINABLE DEVELOPMENT

3.1

Different Evaluations of Article 31(3)(c): Is It a ‘Master Key’?

Jurists hold different views on the usefulness of Article 31(3)(c).39 For instance, Koskenniemi, quoting Xue’s comments, considers Article 31(3)(c) ‘a “master key” to the house of international law’, which provides an interpretative resolution to a systemic problem between two or more norms that are inconsistent, conflicting or overlapping.40 In a broad sense, the fragmentation of international law refers to policy conflicts, where the said provision may also offer an interpretative solution.41 Advocative scholars argue that the importance of systemic integration provided in Article 31(3)(c) is widely recognised and that 37 See also Rebecca Brown, ‘Invoking International Environmental Norms through Treaty Interpretation’ (2021) 20 The Law and Practice of International Courts and Tribunals 235, 235–66. 38 For a critical view on the reference to soft law, Freya Baetens, ‘The Iron Rhine Case: On the Right Track to Sustainable Development?’ in Marie-Claire Cordonier Segger and H.E. Judge C.G. Weeramantry (eds), Sustainable Development Principles in the Decisions of International Courts and Tribunals: 1992–2012 (Routledge, London 2017) 297, 306. Cf. on a criticism of the invocation of Article 31(3)(c) by the Philip Morris v Uruguay Tribunal, Prabhash Ranjan, ‘Police Powers, Indirect Expropriation in International Investment Law, and Article 31(3)(c) of the VCLT: A Critique of Philip Morris v. Uruguay’ (2019) 9 Asian Journal of International Law 98, 118 (stating that ‘once a tribunal invokes Article 31(3)(c), it is incumbent on the tribunal to deal with all of the major elements of the said provision to ensure that the method of treaty interpretation is robust’). 39 Numerous publications have addressed the issues regarding Article 31(3)(c). For example, the reports of the Study Group of the International Law Commission on the fragmentation of international law caught scholars’ attention. See Report of the Study Group (n 10); Koskenniemi, Fragmentation (n 10). Additionally, McLachlan’s work provides a basis for extensive discussion regarding systemic integration (Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279). An article published in 1998 by Philippe Sands was one of the earliest works to address Article 31(3)(c) in the context of sustainable development (Sands (n 12) 85). 40 Koskenniemi, Fragmentation (n 10) 211 [420]. 41 ibid 19 [24].

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the cases that applied this provision increased after the Study Group on the Fragmentation of International Law published its reports.42 Contrary to this optimistic expectation, the practical importance of the provision has been subject to criticism and scepticism. Even before the ILC’s Study Group initiated the academic and practical interest in systemic integration under Article 31(3)(c), the scepticism regarding usefulness of that provision was expressed.43 Several scholars also criticise the undue usage of or excessive expectations expressed towards this provision. Among others, Orakhelashvili reviewed the Oil Platforms Case and opined that the legal norms having public values, such as peremptory norms, which cannot be derogated by an agreement between the parties, should be applied instead of being considered under Article 31(3)(c).44 Van Damme acknowledged the usefulness of the term ‘sustainable development’ in the preamble of the World Trade Organization (WTO) Agreement that allows the Panel and the Appellate Body to be aware of the importance of the reference to the external relevant rules of international law; however, she raised the criticism that ‘Normative arguments in favour of the application of Article 31(3)(c) VCLT tend to ignore the fact that only the text of the treaty under interpretation and its (broad) context can determine whether its application is necessary and relevant’.45 Van Damme’s statement is notably relevant to the current author’s view. Systemic integration under Article 31(3)(c) should work only within the limitation of the aim of treaty interpretation under the VCLT.46

42 Sands (n 12) 95; Richard K. Gardiner, Treaty Interpretation (2nd edn, Oxford University Press, Oxford 2015) 290; Merkouris (n 20) 4–5. See McLachlan (n 39) 279–80. 43 For example, see Gabčíkovo-Nagymaros Project (n 8) (Separate Opinion of Vice-President Weeramantry) [1997] ICJ Rep. 88 114; Hugh Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–1989, Part Three’ (1991) 62 British Yearbook of International Law 1, 58. 44 Alexander Orakhelashvili, ‘Substantive Applicable Law, Consensual Judicial Jurisdiction, and the Public Interest in International Litigation’ (2012) 55 Japanese Yearbook of International Law 31, 39–43. 45 Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford University Press, Oxford 2009) 363. See also Robert Howse, ‘The Use and Abuse of Other “Relevant Rules of International Law” in Treaty Interpretation: Insights from WTO Trade/Environment Litigation’ International Law and Justice Working Papers 2007/1, at https://​iilj​.org/​wp​-content/​uploads/​2016/​08/​Howse​-The​-use​-and​-abuse​-of​ -other​-relevant​-rules​-of​-international​-law​-in​-treaty​-interpretation​-2007​-1​.pdf accessed 10 June 2022. 46 Achmea Decision (n 21) [154] (stating that ‘It is not the proper role of Article 31(3)(c) VCLT to rewrite the treaty being interpreted, or to substitute a plain reading of a treaty provision with other rules of international law, external to the treaty being interpreted, which would contradict the ordinary meaning of its terms’). See also ibid [165].

Limitations of systemic integration under Art 31(3)(c) VCLT

3.2

39

Extent of ‘Parties’ and Treaty Interpretation as a Daily Activity

A persistent interpretative problem related to Article 31(3)(c) is the extent of ‘parties’. There is no concordant view among jurists as to whether the ‘parties’ should be construed as all parties to the treaty interpreted, or as parties to the dispute. The restrictive view emphasises that interpreters should consider only the external rules binding all parties to the treaty interpreted.47 The advantage of this view is that the interpretation of a term can be consistent for all parties to the treaty.48 A disadvantage is that ‘the more universal a treaty is, the smaller the chance that it could “meet” other treaties would be’.49 The case is especially true where non-State entities are parties to that treaty, such as the EU.50 In the Achmea Decision, the claimants held that the EU law could not be considered in interpreting the Energy Charter Treaty (ECT) under Article 31(3)(c) owing to the lack of identical membership between them.51 The Tribunal also found the dissonance of membership52 and, based on its deliberation on the adverse effect of ‘systemic integration’, rejected the assertion submitted by the European Commission that the EU law should be considered. According to the Tribunal, applying Article 31(3)(c) in interpreting Article 26 of the ECT in taking into account the EU law ‘would be an incoherent and anomalous result and inconsistent with the object and purpose of the ECT and with the rules of

47 E.g. Ulf Linderfalk, On The Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (Springer, Dordrecht 2007) 178; Ulf Linderfalk, ‘Who Are “the Parties”? Article 31, Paragraph 3(c) of the 1969 Vienna Convention and the “Principle of Systemic Integration” Revisited’ (2008) 55 Netherlands International Law Review 343–64 (Linderfalk, ‘Who…’); Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers, Leiden 2009) 433. 48 Duncan French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55 International and Comparative Law Quarterly 281, 306. 49 Anne Peters, ‘The Refinement of International Law: From Fragmentation to Regime Interaction and Politicization’ (2017) 15(3) International Journal of Constitutional Law 671, 694. See also Gabrielle Marceau, ‘A Call for Coherence in International Law: Praises for the Prohibition against “Clinical Isolation” in WTO Dispute Settlement’ (1999) 33 Journal of World Trade 87, 124; Margaret A. Young, ‘The WTO’s Use of Relevant Rules of International Law: An Analysis of the BIOTECH Case’ (2007) 56 International and Comparative Law Quarterly 907, 916. 50 See Gabrielle Marceau, ‘WTO Dispute Settlement and Human Rights’ (2002) 13 European Journal of International Law 753, 781; Young (n 49) 916. 51 Achmea Decision (n 21) [71]. 52 ibid [162].

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international law on treaty interpretation and application’. 53 In the same vein, the WTO Panel in EC—Biotech rebutted the assertion made by the European Communities (EC); that is, the Convention on Biological Diversity (CBD)54 and the Cartagena Protocol on Biosafety to the CBD55 should be considered to interpret the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).56 The Panel refuted the EC’s contention because these multilateral treaties were not applicable to all WTO Member States, since the US had not ratified them.57 The moderate view enables interpreters to consider any relevant rules of international law that bind the parties in dispute.58 This position, however, may impair the coherence of the treaty interpreted due to the risk that the same term in the same treaty may be given diverse interpretations across disputes by different parties. Despite that risk, French supports this view in line with practical and realistic perspectives: implementation and dispute resolution over the interpretation and application of a multilateral treaty can be committed on a bilateral basis by concluding a bilateral agreement for the treaty operation or as a compromis that sets the Court’s jurisdiction for dispute settlement.59 The Panel report on United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia stated: ‘we note that the Appellate Body, like the Original Panel, referred to a number of international agreements, many of which have been ratified or otherwise accepted by the parties to this dispute.’60 The Appellate Body in EC—Aircraft, stating that ‘one must exercise caution in drawing from an international agreement to which not all WTO members are party’, suggested the possibility of

53 ibid [155]. The Tribunal also mentioned that ‘This would bring uncertainty and entail the fragmentation of the meaning and application of treaty provisions and of the obligations of ECT Parties, contrary to the plain and ordinary meaning of the ECT provisions themselves’. Ibid [158]. 54 1760 UNTS 79. 55 2226 UNTS 208. 56 1867 UNTS 493. 57 European Communities—Measures Affecting the Approval and Marketing of Biotech Products (Complaint by the United States of America, Canada, Argentina) (2003), WTO Doc. WT/DS291/R, WT/DS292/R, WT/DS293/R (Panel Report) [7.49], [7.68]–[7.70], [7.73]–[7.75] (EC—Biotech). However, see [7.72]. See also Merkouris (n 20) 46–7. 58 E.g. Koskenniemi, Fragmentation (n 10) 237–9 [471]–[472]. 59 French (n 48) 307. 60 United States―Import Prohibition of Certain Shrimp and Shrimp Products― Recourse to Article 21.5 of the DSU by Malaysia, WTO, Panel Report adopted on 15 June 2001, WT/DS58/RW [5.57] (footnote omitted).

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considering external legal rules to which not all WTO members are party.61 The Appellate Body report on US—Shrimp referred to Appendix I of the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)62 in construing ‘exhaustible natural resources’ under Article XX(g) of the General Agreement on Tariffs and Trade.63 Nevertheless, not all WTO member countries are parties to the CITES – only some of them are, including the parties to a dispute.64 However, the Appellate Body did not explicitly refer to Article 31(3)(c) as it took into account the CITES. Rather, it referred to an objective of ‘sustainable development’ in the preamble of the WTO Agreement and considered the term ‘exhaustible natural resources’ as a generic term evolving along with social, scientific and normative developments.65 The Appellate Body referred to Article 31(3)(c) when it considered the general principles of international law in interpreting the chapeau of Article XX.66 The moderate view construing ‘parties’ as parties in dispute emphasises the role of the rule of treaty interpretation in the context of dispute settlement. However, treaty interpretation is a daily activity not only for the diplomatic process vis-à-vis foreign countries but also in the process of formulating and implementing various policies in pursuance of relevant international legal regulations within the domestic sphere.67 To a certain extent, the

61 European Community and Certain Member States―Measures Affecting Trade in Large Civil Aircraft, WTO, Appellate Body Report adopted on 18 May 2011, WT/ DS316/AB/R [845] (EC—Aircraft). 62 993 UNTS 243. 63 55 UNTS 194. 64 United States―Import Prohibition of Certain Shrimp and Shrimp Products, WTO, Appellate Body Report adopted on 6 November 1998, WT/DS58/AB/RWT/ DS58/AB/R [132] [US—Shrimp]. 65 Ibid [127]–[134] esp. [129] and [130]. 66 ibid [158] footnote 157. 67 Commentary to Articles 27 and 28, Draft articles on the law of treaties: text as finally adopted by the Commission on 18 July 1966 (A/CN.4/190) (1966) II Yearbook of the International Law Commission (A/CN.4/SER.A/1966/Add.l) 177, 218 [3] (Commentary to Articles 27 and 28). McLachlan (n 39) 280; Anthony Aust, Modern Treaty Law and Practice (Cambridge University Press, Cambridge 2007) 230; Jean d’Aspremont, ‘Formalism versus Flexibility in the Law of Treaties’ in Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann (eds), Research Handbook on the Law of Treaties (Edward Elgar Publishing, Cheltenham 2014) 257, 274; Robert Kolb, The Law of Treaties: An Introduction (Edward Elgar Publishing, Cheltenham 2016) 128.

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State’s own understanding of treaty terms (auto-interpretation) is essential to policy-making and the implementation of the treaty.68 Hence, the moderate view excessively limits the context in which the rule on treaty interpretation is applied.69 When policy-makers in State departments interpret treaty terms for formulating and implementing policies in accordance with the treaty terms, they cannot predict a future dispute with a specific country, except in the case of a bilateral treaty or where a country can be identified hypothetically or strategically. Practically, it is enough for them to consider relevant rules of international law that bind their own country. This reading is not inconsistent with the term ‘parties’ that contemplates two or more States. Reference to any rules of international law that are binding their own country can fulfil the requirement of the personal scope under Article 31(3)(c), whether it be ‘all the parties’ or ‘parties to a dispute’.70 3.3

Hardness of ‘Any Relevant Rules of International Law’

Article 31(3)(c) reads ‘any relevant rules of international law’. The term ‘rules’ suggests that it covers treaty, customary international law and general principles recognised by civilised countries under Article 38(1) of the Statute of ICJ.71 Other legal materials, such as non-legally binding documents and recommendatory resolutions adopted by international organisations, among others, may not be intended for consideration under this provision.72 In OSPAR Arbitration, the Tribunal rejected Ireland’s claim that the Aarhus Convention73 should be considered in interpreting Article 9(2) of the OSPAR Convention74 under Article 31(3)(c).75 The Tribunal regarded the Aarhus 68 See Odile Ammann, Domestic Courts and the Interpretation of International Law (Brill Nijhoff, Leiden 2020) 182–3. 69 Linderfalk, ‘Who…’ (n 47) 356; Daniel Rosentreter, Article 31(3) (c) of the Vienna Convention on the Law of Treaties and the Principle of Systemic Integration in International Investment Law and Arbitration (Nomos, Baden-Baden 2015) 167. 70 The positions taken by one country may vary on a case-by-case basis. For instance, Australia took the restrictive view in EC—Aircraft (EC—Aircraft (n 61) [515]) and the moderate view in Whaling in Antarctic (Whaling in the Antarctic (Australia v Japan) Memorial of Australia 171 [4.81]). 71 See Merkouris (n 20) 41–5. 72 Villiger (n 47) 433. 73 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 2161 UNTS 447 (Aarhus Convention). 74 Convention for the Protection of the Marine Environment of the North-East Atlantic, 2343 UNTS 67, 75 (OSPAR Convention). 75 Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v UK) PCA (Final Award) 2 July 2003 1, 32 [97], 33 [99], [104]

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Convention as ‘almost law’, because the disputant parties signed but did not ratify the said Convention.76 One of the arbitrators of the OSPAR Arbitration, Griffith, who supported Ireland’s claim and took a flexible approach in his Dissenting Opinion, stated that the Aarhus Convention should be considered in interpreting Article 9(2) of the OSPAR Convention under Article 31(3)(c) despite neither party having ratified nor being bound by it.77 Griffith argued that although the Aarhus Convention did not bind the parties, it held ‘a relevant normative and evidentiary value that is not denied merely because neither the UK nor Ireland has yet ratified it’.78 Moreover, the Aarhus Convention should be considered as a lex lata and not as ‘almost law’, because it entered into force between the parties that ratified it.79 In several cases, even external non-legally binding materials are considered in interpreting treaty terms. For instance, Iron Rhine Arbitration explicitly mentioned that even ‘soft law’ could be considered under Article 31(3)(c).80 For this expansion the reference to the evolutive interpretation under Article 31(3)(c) based on the principle of effectiveness might allow the interpreters to extend the capability of that provision. US—Shrimp referred to conventions and outcomes of international conferences that do not bind even the disputants.81 However, these references by the Appellate Body were not made under Article 31(3)(c) but under Article 31(1)82 or under Article 32.83 This possibility infers that systemic integration is not exclusively embodied under Article 31(3)(c), which may have a broader scope that enables interpreters to consider more flexibly the legal materials unqualified under Article 31(3)(c).84 This hypothesis being proven, the reference to rules having only ‘a relevant

https://​pcacases​.com/​web/​sendAttach/​121 accessed 10 June 2022 (OSPAR Arbitration). For Ireland’s claim in this regard, see Memorial of Ireland, Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v UK) PCA, 7 March 2002 30–31[100]–[101] accessed 10 June 2022. 76 OSPAR Arbitration (n 75) 33 [99], 34 [103]. 77 ibid (Dissenting Opinion of Dr. Gavan Griffith) 69–72 [9]–[19]. 78 ibid 69–70 [10]. 79 ibid 70 [11]. 80 Iron Rhine Arbitration (n 25) [58]. 81 US—Shrimp (n 64) [130]. 82 See EC—Biotech (n 57) [7.92]–[7.94]. For critical analysis on OSPAR Arbitration and EC—Biotech in light of systemic integration under Article 31(3)(c), see Freya Baetens, ‘Muddling the Water of Treaty Interpretation? Relevant Rules of International Law in the MOX Plant OSPAR Arbitration and EC—Biotech Case’ (2008) 77 Nordic Journal of International Law 197, 197–216. 83 See Merkouris (n 20) 41–95. 84 See (n 20) above and accompanying text and Section 2.

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normative and evidentiary value’ should fall under Article 31(1) or Article 32 rather than under Article 31(3)(c). 3.4

Relevance of ‘Any Relevant Rules of International Law’

Sustainable development requires harmony between conflicting values or incompatible policies in law implementation. Balancing different policies and subject matters lies at the heart of achieving sustainability. Unfortunately, Article 31(3)(c) is not designed to consider various subject matters in interpreting a treaty term. Judge Higgins strikingly pointed out that the requirement of relevance under Article 31(3)(c) should be determined in relation to the type of treaty and subject matter involved. 85 Although relevance is a crucial element for defining ‘any relevant rules of international law’, the meaning of relevance lacks sufficient clarification aside from similarity.86 Rather, on a case-by-case basis, what is scrutinised is whether the rules concerned can provide ‘“relevant” interpretative guidance’.87 Three views have been considered for determining relevance under Article 31(3)(c): (1) the resemblance of the subject matter between the treaty term interpreted and rules to be referred;88 (2) relevance to the topic of the dispute;89 (3) relevance to the concepts addressed by the treaty interpreted.90

85 Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) (Separate Opinion of Judge Higgins) [2003] ICJ Rep 225, 237 [46]. 86 Rosentreter (n 69) 159. 87 Peru—Additional Duty on Imports of Certain Agricultural Products, WTO, Appellate Body Report adopted on 31 July 2015, WT/DS457/AB/R [5.103]. See comp. United States—Definitive Anti-Dumping and Countervailing Duties on Certain Products from China, WTO, Appellate Body Report adopted on 25 March 2011, WT/ DS379/AB/R [313]. 88 EC—Aircraft (n 61) [846]–[855]. 89 Gabrielle Marceau, ‘Conflicts of Norms and Conflicts of Jurisdictions: The Relationship between the WTO Agreement and MEAs and other Treaties’ (2001) 35 Journal of World Trade 1081, 1087. 90 See for example, statements by Mr. Harish Salve, as Senior Counsel (India), Verbatim Record, Public sitting held on Monday 18 February 2019, at 10 a.m., at the Peace Palace, President Yusuf presiding, in the Jadhav case (India v. Pakistan) [80], [83]–[84], [161]–[162]. See also Mustafa Kamil Yasseen, ‘L’interprétation des traités d’après la Convention de Vienne sur le droit traités’ (1976) 151 Recueil des Cours de l’Académie de Droit International 1, 63; Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press, Cambridge 2003) 263–4.

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Merkouris submitted a sophisticated criterion, namely, the proximity criterion.91 The proximity criterion functions as a single criterion but posits four elements, namely, terminological, subject matter, temporal and personal. These elements are less independent but more interrelated within the criterion of proximity. For instance, if parties to a treaty interpreted and a treaty referred are non-identical, then the latter treaty cannot be referred under Article 31(3) (c) in accordance with a strict view. However, under the proximity criterion, the latter treaty can be considered if the three other elements indicate sufficient similarity despite the lack of identical membership between two treaties.92 The proximity criterion transforms interpretative questions on the terms ‘parties’ and ‘any relevant rules of international law’ into a comprehensive evaluation of resemblance, which introduces flexibility in meeting the requirements of extraneous legal rules to be referred. Thus, the proximity criterion may enable interpreters to consider various rules with different policies without adhering to the same subject matter requirement. The requirement of relevance may not affect the qualification of general principles of international law under Article 31(3)(c) owing to their general applicability, rather than having specific relevance to the subject matter.93 Reference to general principles of international law indicates a boundary of the requirement of relevance for systemic integration under Article 31(3)(c). It is a basic presumption of the systemic integration that ‘parties are taken “to refer to general principles of international law for all questions which [the treaty] does not itself resolve in express terms or in a different way”’.94 3.5

Ambiguity in Application: Extraneous Legal Rules under Article 31(3)(c) and Applicable Law

International courts and tribunals frequently bridge or confuse two aspects in applying Article 31(3)(c), namely, reference to extraneous legal rules under Article 31(3)(c) and applying such rules within their jurisdiction on which the

91 Merkouris (n 20) 83–95. See also Sumith Suresh Bhat, ‘A Study of the Issue of “Relevant Rules” of International Law for the Purposes of Interpretation of Treaties under Article 31(3)(c) of the Vienna Convention on the Law of Treaties’ (2019) 21 International Community Law Review 190–219. 92 Merkouris (n 20) 89–90. 93 For instance, see Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 14 [66] (Pulp Mills Case); Pulp Mills Case, Rejoinder of Uruguay vol. I [2.56] www​.icj​-cij​.org/​public/​files/​case​-related/​135/​15432​.pdf accessed 10 June 2022. See also US—Shrimp (n 64) [158] footnote 157. 94 Koskenniemi, Fragmentation (n 10) 234 [465] (footnote omitted).

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parties agreed. For instance, in the Oil Platforms Case, the Court stated the following: interpretation must take into account ‘any relevant rules of international law applicable in the relations between the parties’ […] The Court cannot accept that Article XX, paragraph 1(d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty.95

The Court’s majority bridged the interpretation with reference to external legal rules and the application of these external rules to the case. Judge Buergenthal criticised the majority that applied the rules on the use of force by relying on Article 31(3)(c) from the perspective of the consensual basis of the Court’s jurisdiction. He insisted that only the applicable law which the parties agreed to empower the Court to apply to the case should be considered under Article 31(3)(c).96 He further went on to state that whether a rule may be deemed a jus cogens rule is irrelevant.97 Accordingly, his argument concluded that the parties’ agreement regarding the strictly applicable law should delimit the range of extraneous legal rules to be referred under Article 31(3)(c).98　 However, bridging the problems regarding the applicability of ‘any rules of international law’ between disputants and the jurisdiction of courts and tribunals in a case may also extend the range of extraneous legal rules to be referred under Article 31(3)(c). The OSPAR Arbitration suggested this possibility when the Tribunal rejected Ireland’s claim to consider the Aarhus Convention in interpreting Article 9(2) of the OSPAR Convention. The Tribunal indicated that courts and tribunals can consider non-legally binding materials under 95 Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Rep 161 [41] (emphasis added). The 1955 Treaty referred to Treaty of Amity Economic Relations and Consular Rights between the United States and. Iran, 284 UNTS 93. Comp. Jadhav (India v Pakistan) (Merits) [2019] ICJ Rep 418 [33]– [38], [135]. 96 Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) (Separate Opinion of Judge Buergenthal) 270, 278–9 [22]. 97 ibid 279 [23]. 98 See ibid 281 [28]. However, see Koskenniemi, Fragmentation (n 10) 234 [465]. See also Draft Conclusion 20 on interpretation and application consistent with peremptory norms of general international law (jus cogens), ILC, ‘Peremptory norms of general international law (jus cogens)’ in Report of the International Law Commission Seventy-first session (29 April–7 June and 8 July–9 August 2019) (A/74/10)141, 146 https://​legal​.un​.org/​ilc/​reports/​2019/​english/​chp5​.pdf accessed 10 June 2022.

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Article 31(3)(c) if the parties agree to empower the judicial organ to apply those materials.99 Answering the question whether a compromis on applicable laws concluded between the parties to the dispute confines or extends the range of available extraneous legal rules to be referred under Article 31(3)(c) requires further case studies and empirical analysis. The matter of jurisdiction is a particular problem in the context of dispute settlement. It is irrelevant to treaty interpretation as a daily activity of policy-makers. Nevertheless, State officers should anticipate the issue of the applicability of rules to be referred in formulating domestic policies for treaty implementation, because other parties to the treaty may challenge the legality of domestic policies. In terms of such anticipation, the scope of Article 31(3)(c) lacks sufficient clarity as an adequate guideline for State officers in harmonising various legal rules for interpretation and, thus, in achieving sustainable development.

4.

CONCLUDING REMARKS

Sustainable development requires the reconciliation of conflicting or overlapping norms that reflect different policies and values given social changes and newly acquired scientific knowledge. Article 31(3)(c) confines the scope of rules to which interpreters refer to the requirements of the identical membership to be bound and the resemblance of the rules to be referred. Given that the reference to extraneous legal rules confines itself to meeting these personal and material requirements, the systemic integration under Article 31(3)(c) may not be a sufficient tool for reconciling conflicting rules of international law reflecting contradictory policies for sustainable development. Moreover, as the Achmea Decision explicitly acknowledged, the systemic integration under Article 31(3)(c) works within the framework of treaty interpretation where the text and the context are emphasised,100 and the systemic coherence is not a guaranteed consequence.101 Insofar as treaty interpretation aims to clarify the ‘ordinary meaning of the term’, an inherent limitation exists against achieving sustainable development through treaty interpretation. As Judge Higgins pointed out, interpreters may refrain from introducing any concepts that are not explicitly mentioned in the provision interpreted.102 In this respect, as Soloveva noted regarding investment treaties, inserting the

OSPAR Arbitration (n 75) 33 [99]. Achmea Decision (n 21) [154]. See also Van Damme (n 45) 363. 101 See (n 53) and accompanying text. 102 See (n 85). 99

100

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terms that reflect different values to be considered into the treaty may be more desirable than having recourse to Article 31(3)(c).103 A possibility that may cure the insufficiency of Article 31(3)(c) in achieving sustainable development can be drawn from the abovementioned analysis. Iron Rhine Arbitration suggested such a possibility where interpretative materials from a broad normative environment, which are not qualified under Article 31(3)(c), can be taken into account through a lens of evolutive interpretation as the second limb of intertemporal law. This approach serves the purpose of achieving sustainable development. However, this flexible application may entail the risk of excessive or abusive use of systemic integration and inconsistency with the principle of consent; thus, it is uncertain whether it can be entrenched in practice. Thus, it is significant to clarify the sphere in which the legitimate and reasonable application of Article 31(3)(c) can be ensured.

103 Kseniia Soloveva, ‘Customary Environmental Law in Investment Arbitrations: Can the Systemic Integration Principle Offer a Guidance?’ (31 March 2021) http://​cilj​ .co​.uk/​2021/​03/​31/​customary​-environmental​-law​-in​-investment​-arbitrations​-can​-the​ -systemic​-integration​-principle​-offer​-a​-guidance/​ accessed 10 June 2022.

4. The role of principles of international environmental law in greening the interpretation of human rights: the case of the UN Committee on Economic, Social and Cultural Rights Megan Donald1 1. INTRODUCTION It is well established that human rights are dependent on a healthy environment for their realisation. Despite the integral role of a healthy environment in the realisation of human rights, the environment and the life-supporting services it provides are subject to numerous threats, largely driven by human activity.2 A healthy environment is indispensable for human rights. Any effective realisation of human rights thus requires the consideration and integration of relevant environmental considerations and the protection of the environment on which these rights depend. One of the ways in which the environment and human rights can be integrated is by ‘greening’ human rights through interpretation. This involves interpreting human rights from an environmental perspective, thereby incor-

1 This chapter is derived from part of the author’s unpublished doctoral dissertation: Megan Donald, Greening the Covenant: Integrating Environmental Considerations in the Interpretation of States Parties’ Obligations under Article 2(1) of the International Covenant on Economic Social and Cultural Rights (LLD dissertation, Stellenbosch University 2021), available at: http://​hdl​.handle​.net/​10019​.1/​109983. 2 See for example: World Meteorological Organization, Statement on the State of the Global Climate in 2019 (WMO-No 1248, 2020); UNEP, Global Environment Outlook 6: Healthy Planet, Healthy People (CUP 2019) 47; IPBES, Global Assessment Report on Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES Secretariat 2019); UNEP and CIEL, Compendium on Human Rights and the Environment: Selected International Legal Materials and Cases (UNEP and CIEL 2014) 13.

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porating relevant environmental considerations within the scope of existing rights. Integrating aspects of international environmental law (IEL) with human rights law in this way can contribute to the harmonisation of these branches of international law, and can enhance the protection of human rights in the face of environmental threats. This chapter proposes that this greening of human rights can be enriched by relying on principles of IEL to guide the interpretation and application of human rights. Although the relevance of principles of IEL for human rights has been recognised, a clear and systematic approach is yet to be developed.3 The practice of the UN Committee on Economic, Social and Cultural Rights (CESCR or the Committee) is used to illustrate that such an approach is possible and may be valuable, although it is not without limits. Section 2 of the chapter outlines an approach of greening existing rights through interpretation, with reference to the rules applicable to human rights treaty interpretation. Section 3 explores the potential role of principles of IEL. Section 4 demonstrates how principles of IEL can be incorporated into the work of human rights treaty bodies with reference to the work of the UN Committee on Economic, Social and Cultural Rights. Section 5 discusses some advantages and limitations of the proposed approach.

2.

GREENING HUMAN RIGHTS THROUGH INTERPRETATION

Human rights approaches to environmental protection are well established.4 This chapter discusses the approach of broadening the scope of existing human rights to incorporate relevant environmental dimensions through interpre-

3 See, for example Karen Hulme, ‘International Environmental Law and Human Rights’ in Scott Sheeran and Sir Nigel Rodley (eds), Routledge Handbook of International Human Rights Law (Routledge 2013) 297–300. 4 See, for example: Michael R Anderson, ‘Human Rights Approaches to Environmental Protection: An Overview’ in Alan E Boyle and Michael R Anderson (eds), Human Rights Approaches to Environmental Protection (OUP 1998) 1, 4; Alexander C Kiss and Dinah Shelton, International Environmental Law 3rd ed (Transnational Publishers 2004) 663; Linda Hajjar Leib, Human Rights and the Environment: Philosophical, Theoretical, and Legal Perspectives (Martinus Nijhoff 2011); Stéphanie Chuffart and Jorge E Viñuales, ‘From the Other Shore: Economic, Social, and Cultural Rights from an International Environmental Law Perspective’ in Eibe Riedel, Gilles Giacca and Christophe Golay (eds), Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges (OUP 2014) 286, 288.

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tation.5 While human rights approaches to the environment have often been viewed as a tool to advance environmental protection, approaches to environmental protection can also inform human rights norms and standards. Chuffart and Viñuales explain that it can be useful to consider human rights from an environmental perspective: Human rights have, of course, much to offer to international environmental law, but the opposite is also true. […] [L]ooking at human rights from the environmental shore provides a number of insights which are potentially useful not only for a broader understanding of human rights and their normative context but also, and more importantly, for the continuing quest for their implementation.6

It is therefore valuable to consider the role of environmental law in informing and guiding the interpretation and application of human rights so as to incorporate environmental considerations, and thereby protect the environment on which those rights depend. In order to understand the role of environmental law in the interpretation of human rights, it is necessary to briefly consider the accepted parameters of treaty interpretation, as well as the specific interpretive methods applicable to human rights treaty interpretation. The starting point for international treaty interpretation is the Vienna Convention on the Law of Treaties (VCLT),7 particularly articles 31 and 32 thereof. According to article 31(1) of the VCLT: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’8 This provision contains elements of the objective, subjective and teleological methods of treaty interpretation. As Hollis points out, the proponents of these different methods of interpretation have all found support for their particular method in the provisions of the VCLT.9 The particular nature of human rights treaties has led to an emphasis on teleological interpretation. As Ҫalı confirms, the scope of application is vastly different for human rights treaties: ‘Human rights treaties apply to a much 5 Leib (n 4) 71–2. See also Anderson (n 3) 4; Chuffart and Viñuales (n 4) 288; Kiss and Shelton (n 4) 663. 6 Chuffart and Viñuales (n 4) 307. 7 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 8 For an analysis of article 31(1) of the VCLT in the context of human rights tribunals, see Malgosia Fitzmaurice, ‘Interpretation of Human Rights Treaties’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 739, 760–4. 9 Duncan B Hollis, ‘The Existential Function of Interpretation in International Law’ in Andrea Bianchi, Daniel Peat and Matthew Windsor (eds), Interpretation in International Law (OUP 2015) 78, 81.

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larger universe of situations than many other international treaties. By their very nature, human rights provisions need to be interpreted in the light of changing political, social, and economic justifications of State policies.’10 Ҫalı explains that the act of interpreting and applying human rights treaties necessarily involves ‘subsuming particulars under generals in the domain of the relationship between the State and the individual’.11 For this reason, the wording of human rights treaties tends to be more generalised and abstract than is the case with other treaties.12 Human rights tribunals therefore follow a teleological approach to interpretation which recognises that human rights treaties are ‘live instruments, whose interpretation must go hand in hand with evolving times and current living conditions’.13 The characteristics of these treaties – including their abstract wording, broadly formulated provisions, non-reciprocal obligations and multilateral nature – necessitate a teleological approach to interpretation that emphasises the object and purpose of the treaty.14 The interpretive principle of effectiveness and the evolutive approach are components of such a teleological interpretation of human rights treaties.15 They affirm that human rights treaty interpretation must have practical effect in the lives of rights-holders,16 and must evolve appropriately according to changing circumstances.17 These two interpretive tools are briefly explained below.

10 Başak Ҫalı, ‘Specialized Rules of Treaty Interpretation: Human Rights’ in Duncan B Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 525, 531. 11 Ҫalı (n 10) 531. 12 Ҫalı (n 10) 529; Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 748. 13 Mapiripán Massacre v Colombia (Merits, Costs, Reparations) Inter-American Court of Human Rights Series C No 134 (15 September 2005) para 106. 14 See VCLT (n 7) article 31. See also Sisay A Yeshanew, The Justiciability of Economic, Social and Cultural Rights in the African Regional Human Rights System: Theories, Laws, Practices and Prospects (Åbo Akademi University Press 2011) 45; Ҫalı (n 10) 529 & 533; Julian Arato, ‘Accounting for Difference in Treaty Interpretation over Time’ in Andrea Bianchi, Daniel Peat and Matthew Windsor (eds), Interpretation in International Law (OUP 2015) 205, 205–6. 15 See Magdalena Sepúlveda, The Nature of the Obligations under the ICESCR (Intersentia 2003) 79–81. 16 On effectiveness, see Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 746; Richard Gardiner, ‘The Vienna Convention Rules on Treaty Interpretation’ in Duncan B Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 475, 496; Ҫalı (n 10) 537–9. 17 On the evolutive approach, see Eirik Bjorge, ‘The Vienna Rules, Evolutionary Interpretation and the Intentions of the Parties’ in Andrea Bianchi, Daniel Peat and Matthew Windsor (eds), Interpretation in International Law (OUP 2015) 189, 190–1; Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 766–7; Philip Alston and

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Effectiveness is generally defined in terms of two aspects.18 First, effectiveness means that each provision in a treaty has meaning and effect.19 This has been linked to the idea of good faith interpretation in the VCLT.20 A good faith interpretation should assume that every provision of a treaty has significance and should be ascribed some effect.21 The second aspect of effectiveness relates to teleological interpretation22 and the idea that a treaty should be interpreted in such a way as to actually achieve its object and purpose.23 In other words, a treaty must be afforded an interpretation that renders it practically effective in achieving its aims.24 Turning to the evolutive approach, human rights treaties are long-term treaties which need to be applied to a variety of circumstances over time, and their interpretation must therefore be flexible and sensitive to change.25 As Alston and Goodman note, ‘[t]he long-term treaty must rest upon a certain flexibility and room for development if it is to survive changes in circumstances and relations between the parties’.26 The Inter-American Court of Human Rights (IACtHR) has affirmed the evolutive approach and held it to be consistent with the provisions of the VCLT.27 In Mapiripán Massacre v Colombia the IACtHR followed this evolutive approach and noted that ‘human rights treaties are live instruments, whose interpretation must go hand in hand with evolving times and current living conditions’.28 The idea of human rights treaties as ‘living instruments’ is evident in the practice of a number of human rights tribunals, and is linked to

Ryan Goodman, International Human Rights (OUP 2013) 117–18; Sepúlveda (n 15) 81. 18 Ҫalı (n 10) 538; Malgosia Fitzmaurice, ‘The Practical Working of the Law of Treaties’ in Malcolm D Evans (ed), International Law (2nd edn, OUP 2006) 187, 202; Gardiner (n 16) 496. 19 Ҫalı (n 10) 538; Fitzmaurice, ‘The Practical Working of the Law of Treaties’ (n 18) 202; Gardiner (n 16) 496. 20 Gardiner (n 16) 496. 21 Fitzmaurice, ‘The Practical Working of the Law of Treaties’ (n 18) 202. 22 Ҫalı (n 10) 538; Fitzmaurice, ‘The Practical Working of the Law of Treaties’ (n 18) 202; Gardiner (n 16) 496. 23 Ҫalı (n 10) 538. 24 Fitzmaurice, ‘The Practical Working of the Law of Treaties’ (n 18) 202; Yeshanew (n 14) 45. 25 Sepúlveda (n 15) 81. 26 Alston and Goodman (n 17) 117–18. 27 Mapiripán Massacre vs Colombia (n 13) para 106. 28 Mapiripán Massacre vs Colombia (n 13) para 106. See also Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 766; Arato (n 14) 206.

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an evolutive approach to interpretation.29 This ‘living instrument’ approach is also referred to by some as ‘the concept of dynamic interpretation of treaties’.30 The IACtHR has also held that human rights treaties are ‘living instruments whose interpretations must consider the changes over time and present-day conditions’.31 The jurisprudence of the European Court of Human Rights (ECtHR) also refers to the European Convention on Human Rights (ECHR) as a ‘living instrument’ from as early as 1978.32 In Tyrer v United Kingdom the court held that ‘the [ECHR] is a living instrument which […] must be interpreted in the light of present-day conditions’.33 As Fitzmaurice points out, the living instrument concept has been ‘fundamental to the development of the ECtHR’s concept of evolutive interpretation’.34 The dynamic interpretation of treaties as living instruments is an approach also followed by UN human rights bodies.35 In relation to the International Covenant on Civil and Political Rights (ICCPR),36 the UN Human Rights Committee has held that the ICCPR must be interpreted as a ‘living instrument’ and that the rights therein should be applied ‘in the context and in the light of present-day conditions’.37 The Committee on the Elimination of Racial Discrimination has similarly referred to the International Convention on the Elimination of All Forms of Racial Discrimination38 as a ‘living instrument’ that ‘must be interpreted and applied taking into [account] the circumstances of contemporary society’.39

29 Ҫalı suggests that this approach falls within the scope of the overarching principle of effectiveness. See Ҫalı (n 10) 538. 30 Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 767. 31 The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law Advisory Opinion OC-16/99, Inter-American Court of Human Rights Series A No 16 (1 October 1999) para 114. 32 Arato (n 14) 206. 33 Tyrer v United Kingdom App No 5856/72 (ECtHR, 1978) para 31. See also Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 766. 34 Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 766. 35 Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 767. 36 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 37 UN Human Rights Committee Judge v Canada Communication No 829/1998 (13 August 2003) UN Doc CCPR/C/78/D/829/1998 para 10.3. See also Fitzmaurice, ‘Interpretation of Human Rights Treaties’ (n 8) 767. 38 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195. 39 UNCERD ‘Hagan v Australia’ Communication No 26/2002 (20 March 2003) UN Doc CERD/C/62/D/26/2002 para 7.3. See also UNCEDAW ‘General Recommendation No 25, on Article 4, Paragraph 1, of the Convention on the Elimination of All Forms

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It is clear that human rights tribunals have advanced an approach to treaty interpretation which allows for meaning to evolve over time and according to circumstances, thereby ensuring that human rights treaties do not become obsolete.40 Medina argues that this process of updating human rights to apply to new circumstances is a duty forming part of the judicial (and treaty body) mandate.41 This ‘pragmatic and evolutive’ approach allows these treaties to be applied to new problems which did not exist at the time of their drafting, thereby continuing to ensure the realisation of human rights in accordance with the object and purpose of protecting the human person (or persons) as rights bearer.42 The principle of effectiveness and the evolutive approach are of particular importance for the environmental dimensions of human rights. These elements of teleological interpretation affirm that ‘new, clear, potential, or actual threats that the changes occurring in the world pose, necessitate a response, if the object and purpose of human rights law is not to be undermined’.43 Given the rapidly changing condition of the environment and the vast extent of the threats to human rights posed by widespread environmental degradation and climate change, these interpretive methods provide clear support for the integration of environmental considerations within human rights treaties. In fact, the application of the teleological approach demands that relevant environmental considerations are taken into account. Relying on established principles of IEL to guide human rights treaty interpretation is one way to enhance the effectiveness of human rights treaties and ensure that they do not become obsolete in the face of present-day environmental challenges.

3.

THE NATURE AND POTENTIAL ROLE OF PRINCIPLES OF IEL

In order for principles of IEL to be of use in interpreting human rights, it is necessary to understand the nature and legal status of these principles. In many ways, the nature of these principles makes them particularly suited to informing human rights treaty interpretation.

of Discrimination against Women, on Temporary Special Measures’ (12 May 2004) UN Doc HRI/GEN/1/Rev7 282 para 3. The latter refers to the treaty as a ‘dynamic instrument’. 40 Sepúlveda (n 15) 83. 41 Cecilia Medina, ‘The Role of International Tribunals: Law-Making or Creative Interpretation’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (OUP 2013) 649, 651. 42 Yeshanew (n 14) 45. 43 Medina (n 41) 655.

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It is necessary to begin by distinguishing principles of international law from rules. Scholars have noted the difficulty in differentiating the two. Martin demonstrates that environmental principles and rules can be distinguished by source, by form and by function.44 The clearest distinction between rules and principles can be seen when one examines their function.45 Beyerlin and Marauhn point out that both rules and principles have a normative ‘steering effect’ on states.46 Rules primarily relate to specific action which must be taken or avoided,47 and they may also distribute rights and organise information.48 Principles, on the other hand, are more general in nature and are designed to find application in various contexts.49 They are not directed at specific behaviour, but have a ‘symbolic, orienting and thus political function’.50 Principles interact with rules by guiding the creation of new rules, influencing the interpretation of existing rules and guiding decision-making in the absence of specifically applicable rules.51 Sands, Peel, Aguilar and Mackenzie refer to the Gentini case, which describes rules as practical and binding and principles as an expression of a general truth and theoretical basis for action.52 In this view, rules are considered the practical formulation of principles, or the application of principles to ‘the varying circumstances of practical life’.53 Throughout the development of IEL, certain overarching principles have emerged from a range of multilateral environmental agreements, treaties and decisions of various international bodies and tribunals.54 The particular nature 44 Gilles Martin, ‘Principles and Rules’ in Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law (Edward Elgar Publishing 2018) 13, 19. Martin notes, however, that ‘it remains impossible to find the one criterion which would give the researcher the certainty of an uncontested qualification’. 45 Martin (n 44) 17; Ben Milligan and Richard Macrory, ‘The History and Evolution of Legal Principles Concerning the Environment’ in Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law (Edward Elgar Publishing 2018) 23, 26. 46 Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart 2011) 37. 47 Beyerlin and Marauhn (n 46) 37; Martin (n 44) 17. 48 Martin (n 44) 17. 49 Milligan and Macrory (n 45) 24. 50 Martin (n 44) 17. 51 Martin (n 44) 18; Milligan and Macrory (n 45) 37. 52 Philippe Sands, Jacqueline Peel, Adriana F Aguilar and Ruth Mackenzie, Principles of International Environmental Law (4th edn, CUP 2018) 199. See Gentini case (Italy v Venezuela) 10 RIAA 551 (1903). 53 Sands, Peel, Aguilar and Mackenzie (n 52) 199. 54 These principles have been catalogued on a number of occasions. See, for example, ‘Report of the World Commission on Environment and Development: Our Common Future’ (1987) UN Doc A/42/427; ‘Stockholm Declaration of the United Nations Conference on the Human Environment’ (June 1972) UN Doc A/CONF48/14/

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of legal principles is what makes these principles of IEL useful for guiding the interpretation of human rights treaties and incorporating relevant environmental considerations. Environment-related challenges have a distinct character and the principles of IEL provide important guidance for how these can be addressed. Importantly, principles of IEL do not prescribe precisely what action must be taken, thereby allowing for context-specific flexibility in the wide-ranging circumstances to which human rights treaties apply. It is therefore possible to apply them within the specific scope of human rights treaties, to the extent that they are consistent with the applicable interpretive methodology. The principles can thus have a ‘steering effect’55 and influence the interpretation of human rights obligations and related decision-making.56 The flexibility of these principles allows for the application of each principle, where appropriate, to the country-specific context of individual states.57

4.

EXAMPLES FROM THE UN COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The CESCR has shown a willingness to refer to principles of IEL where they are relevant for the interpretation or implementation of the rights in the International Covenant on Economic, Social and Cultural Rights (the Covenant). Although the Committee’s practice in this regard is underdeveloped and ad hoc, there is significant scope for appealing to principles of IEL in order to strengthen the linkages between Covenant rights and the environment on which they depend.58 This section examines the use of principles of IEL in REV1; ‘Rio Declaration on Environment and Development’ (June 1992) UN Doc A/ CONF151/26; ‘New Delhi Declaration on the Principles of International Law Relating to Sustainable Development’ (August 2002) UN Doc A/CONF199/8. See also Eloise Scotford, Environmental Principles and the Evolution of Environmental Law (Hart 2017) 72–3; Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law (Edward Elgar Publishing 2018); Sands, Peel, Aguilar and Mackenzie (n 52) 197–251. 55 Beyerlin and Marauhn (n 46) 37. 56 Milligan and Macrory (n 45) 26; Beyerlin and Marauhn (n 46) 37; Martin (n 44) 18. 57 See Sands, Peel, Aguilar and Mackenzie (n 52) 199 with reference to Gentini case (n 52). 58 For additional examples of principles of IEL in the Committee’s work, see UNCESCR ‘General Comment No 15: The Right to Water (Arts. 11 and 12 of the Covenant)’ (20 January 2003) UN Doc E/C12/2002/11 para 28; UNCESCR ‘Statement in the Context of the Rio+20 Conference on “The Green Economy in the Context of Sustainable Development and Poverty Eradication”’ (4 June 2012) UN Doc E/ C12/2012/1; UNCESCR ‘The Pledge to Leave No One Behind: The International

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the work of the Committee with reference to two examples: the precautionary principle and the no-harm principle. The principle of IEL that has been referenced most often by the Committee in recent years is the precautionary principle.59 It has been referred to in concluding observations as well as a recent General Comment. In its 2018 concluding observations on the state report of Argentina, the Committee noted the following: The Committee is deeply concerned about the increased use of pesticides and herbicides that contain glyphosate, despite the serious adverse effects that many of them have on human health and the environment, especially glyphosate, which the World Health Organization’s International Agency for Research on Cancer has identified as a probable carcinogen (art. 12). The Committee recommends that the State party adopt a regulatory framework that includes the application of the precautionary principle with regard to the use of harmful pesticides and herbicides, in particular those that contain glyphosate, in order to avoid the negative health impacts and environmental degradation that can result from their use.60

Here the Committee relies on the precautionary principle to guide its recommendation, as well as its interpretation of article 12. Inclusion of this principle affirms that scientific certainty regarding the health impacts of pesticides and herbicides is not a prerequisite for preventive action. By appealing to the precautionary principle, the Committee is able to give further content to its recommendation and provide clarity for the State party in implementing the recommendation, without needing to explain the concept in detail.61 The Committee therefore imposes certain requirements on the scope and content of the regulatory framework to be adopted, through recommending the application of the precautionary principle.

Covenant on Economic, Social and Cultural Rights and the 2030 Agenda for Sustainable Development’ (5 April 2019) UN Doc E/C12/2019/1. 59 For references to precaution and the precautionary principle by other human rights bodies, see Community of San Mateo de Huanchor v Peru Inter-American Commission on Human Rights, Report No 69/04, Petition 504/03 (15 October 2004) para 12; Balmer-Schafroth v Switzerland App No 22110/93 (ECtHR,1997); Tătar v Romania App No 67021/01 (ECtHR, 2009) para 120. See also Ole W. Pedersen, ‘Environmental Principles and the European Court of Human Rights’ in Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law (Edward Elgar Publishing 2018) 578, 581–4. 60 UNCESCR ‘Concluding Observations, Argentina’ (1 November 2018) UN Doc E/C12/ARG/CO/4 para 60. 61 This is significant given the strict limits placed on the length of the Committee’s concluding observations.

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In the following year, in its concluding observations with respect to Israel, the Committee addressed concerns regarding the ‘long-lasting and hazardous impact of the aerial herbicide sprayed […] in areas adjacent to the fence between Israel and Gaza’. The Committee expressed particular concern about the impact these activities may have on the ‘productivity of the crops and on the soil’ in nearby areas in Gaza, in light of reports of significant food insecurity.62 The Committee recommended that the State party commission a scientific assessment of the impact on Palestinians of herbicide spraying, in particular on their livelihoods, health, food security and environment, and that it respond appropriately to the relevant findings. In the interim, the State party should, on the basis of the precautionary principle, cease such spraying.63

In this case the Committee appealed to the precautionary principle as a justification for its recommendation that Israel cease spraying potentially harmful herbicide. Here the precautionary principle provides a justification for the recommendation, once again allowing the Committee to explain its recommendation with reference to recognised concepts that would not necessitate a lengthy description. Finally, the Committee’s 2020 General Comment on Science also incorporates the precautionary principle,64 this time providing a more detailed definition and explanation of the role of the principle in the context of scientific processes and application: Participation also includes the right to information and participation in controlling the risks involved in particular scientific processes and its applications. In this context, the precautionary principle plays an important role. This principle demands that, in the absence of full scientific certainty, when an action or policy may lead to unacceptable harm to the public or the environment, actions will be taken to avoid or diminish that harm.65

It is interesting to note that the Committee describes the precautionary principle with reference to the definition used by UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology.66 The General Comment 62 UNCESCR ‘Concluding Observations, Israel’ (12 November 2019) UN Doc E/ C12/ISR/CO/4 para 45. 63 UNCESCR ‘Israel’ (n 62) para 45. 64 UNCESCR ‘General Comment No 25 on Science and Economic, Social and Cultural Rights (Art 15(1)(b), 15(2), 15(3) and 15(4))’ (7 April 2020) UN Doc E/C12/ GC/25 para 56, 57 & 71. 65 UNCESCR ‘General Comment No 25’ (n 64) para 56. 66 UNCESCR ‘General Comment No 25’ (n 64) para 56 fn 18.

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emphasises that the precautionary principle must guide decisions regarding participation in scientific activity. It is perhaps unfortunate that the Committee restricted its reference to the precautionary principle in the context of participation in scientific processes when there is an important and complex relationship between science, environmental degradation and the precautionary principle.67 The General Comment also notes, in the following paragraph, that the precautionary principle ‘should not hinder and prevent scientific progress, which is beneficial for humanity’, but that it should be able to address risks for human health and the environment.68 The Committee explains that any limits imposed on the freedom of scientific research, that are based on the application of the precautionary principle, must be consistent with the criteria for limitations in article 4 of the Covenant. Here the Committee relies on the precautionary principle to provide additional content to its understanding and interpretation of the nature and scope of article 15 of the Covenant. The Committee also suggests that the principle could serve as a justification for limiting certain rights in circumstances where human health or the environment is at risk, and where such limitation is in line with the provisions of article 4. In these examples, the CESCR relies on the precautionary principle to justify demands for action to prevent harm to human rights, even where the potential harm is uncertain. There is still much potential for the Committee to develop and expand its use of the precautionary principle, particularly where it addresses the threats of climate change to economic, social and cultural rights. Principles of IEL may, in some circumstances, reach the status of customary international law. This lends more weight to their influence on the interpretation of human rights. For example, the no-harm principle (or the prohibition of transboundary environmental harm) has a wealth of support in international law69 and has become part of customary international law,70 although there does not appear to be consensus among scholars over whether it is a rule or principle of customary international law.71 The most widely accepted formulation of the principle appears in Principle 21 of the Stockholm Declaration UNCESCR ‘General Comment No 25’ (n 64) paras 56, 57 & 71. UNCESCR ‘General Comment No 25’ (n 64) para 57. 69 René Lefeber, ‘Responsibility Not to Cause Transboundary Environmental Harm’ in Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law (Edward Elgar Publishing 2018) 92, 92; Sands, Peel, Aguilar and Mackenzie (n 52) 208–10; Kiss and Shelton (n 4) 190. 70 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226; Pierre-Marie Dupuy and Jorge E Viñuales, International Environmental Law (CUP 2018) 65; Beyerlin and Marauhn (n 46) 44. 71 Beyerlin and Marauhn (n 46) 41; Sands, Peel, Aguilar and Mackenzie (n 52) 207; Lefeber (n 69) 94; Dupuy and Viñuales (n 70) 63. 67 68

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and is repeated in Principle 2 of the Rio Declaration, both of which assert that states have ‘the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’.72 The no-harm principle and its status as customary international law have been recognised by the Committee in General Comment 24 in the context of extraterritorial obligations.73 There the Committee confirms that this prohibition extends to extraterritorial harm to human rights.74 States parties under the Covenant are thus prohibited from engaging in activities that cause harm to economic, social and cultural rights in another state’s territory, whether caused by environmental damage or not. The Committee relies on the no-harm principle, among other things, to maintain that the interpretation of ‘international assistance and cooperation’ in article 2(1) of the Covenant includes an obligation on states to ensure that activities by non-state actors within their control do not cause harm to human rights in another territory.75 This principle of IEL has therefore influenced the interpretation and development of extraterritorial human rights obligations. The status of the no-harm principle as customary international law gives it greater persuasive force than other principles of IEL that do not have such status. As a principle of customary international law, the provisions of article 31(3)(c) of the VCLT also apply, requiring any relevant rules of international law to be taken into account in treaty interpretation. Where the status of principles of IEL increases and they are incorporated within customary international law, treaty bodies such as the CESCR may be more inclined to rely on them. The CESCR appears to be keenly aware of the interrelationship between the Covenant and the environment and has demonstrated an openness to integrating principles of IEL in its interpretation and implementation of the Covenant. While the use of principles of IEL remains rather cursory in the abovementioned examples, this approach has the potential to strengthen and 72 ‘Declaration of the United Nations Conference on the Human Environment’ (June 1972) UN Doc A/CONF48/14/REV1 principle 21; ‘Declaration on Environment and Development’ (Rio de Janeiro, June 1992) UN Doc A/CONF151/26 Principle 2. See also Legality of the Threat or Use of Nuclear Weapons (n 70) para 29. 73 UNCESCR ‘General Comment No 24: State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’ (10 August 2017) UN Doc E/C12/GC/24 para 27. See also ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2011) 29 NQHR 578–90. 74 UNCESCR (n 73) para 27 with reference to UNHRC ‘Final Draft of the Guiding Principles on Extreme Poverty and Human Rights, submitted by the Special Rapporteur on Extreme Poverty and Human Rights’ (18 July 2012) UN Doc A/HRC/21/39. 75 UNCESCR (n 73) para 27.

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develop the relationship between human rights and the environment. There are, however, limitations to the use of principles of IEL and the interpretation of human rights. Some of these are explored below, alongside the advantages of this approach.

5.

ADVANTAGES AND LIMITATIONS OF USING PRINCIPLES OF IEL IN THE INTERPRETATION OF HUMAN RIGHTS

The principles of IEL address multiple dimensions of legal problems related to environmental protection, environmental threats and environmental justice. Although these have varying degrees of recognition and legal status, all play an important role in contemporary IEL. There are advantages as well as significant limitations to relying on these principles of IEL to guide the interpretation and implementation of human rights. While this approach could enhance the recognition of the environmental dimensions of human rights, it must be utilised with the appropriate caution and respect for applicable rules of interpretation. This section sets out some of these advantages as well as the limitations that must be taken into account. The advantages of using these environmental principles to guide human rights treaty interpretation include facilitating the harmonisation of IEL and human rights law. This harmonisation provides clarity for states with respect to their human rights and environmental law obligations. It also serves to promote the integration of environmental considerations within human rights decision-making. As abstract principles that can find application in various scenarios, the principles of IEL are useful for understanding how human rights and the environment interact in international law. As a result of their legal nature, these principles are inherently flexible and therefore able to be applied to context-specific problems in a range of circumstances. This makes them particularly useful in guiding the interpretation of human rights and allows for the integration of environmental principles that can apply to the diverse contexts of states. Principles of IEL can also provide useful guidance for human rights bodies and practitioners faced with complex environment-related matters. Decision-making on environment-related human rights challenges can be guided by appropriate and established approaches to the environment. Appealing to these principles of IEL also allows human rights bodies to provide a more principled and substantive reasoning in environmental matters.

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This is particularly important where brevity is necessary, such as in the example of the CESCR.76 There are, however, noteworthy limitations to this cross-pollination between human rights and environmental law. First, human rights bodies have a limited mandate according to the scope of the relevant treaty. Environmental harms will not always amount to human rights violations or be directly relevant to human rights, and the principles of IEL will therefore not be relevant in all cases. For example, the environmental harm that results from clearing indigenous vegetation in order to build a school is unlikely to meet the threshold of a human rights violation. Second, and related to the first point, any interpretation must be consistent with the object and purpose of human rights and the context of the treaty. This is important for the legitimacy of the human rights body and the legitimacy of the interpretation itself. In other words, a principle of IEL will only be relevant where it can be linked to the object and purpose of the treaty, which is the effective realisation of relevant human rights. Environmental considerations that do not have a clear impact or connection to human rights should not be taken into account if the interpretive process is to have legitimacy and integrity. Of course, as the effects of climate change and environmental degradation become more widespread, such links between human rights and the environment should become easier to establish. Another limitation relates to the inconsistent or varied definitions that exist for certain principles of IEL. The use and value of this ‘greening’ approach is impeded where the relevant principle of IEL does not have a commonly accepted definition or understanding. In such instances, human rights bodies would need to clarify their understanding of the relevant principle, as the CESCR did when it made reference to a particular definition of the precautionary principle in General Comment 25. In its General Comment on the right to water, the Committee similarly defined sustainability with reference to a range of principles from the Rio Declaration.77 If such references are incorporated with a clear understanding of their meaning and scope of application, they could prevent some of the challenges associated with inconsistent definitions of certain principles of IEL. Finally, it is also necessary to point out that the incorporation of principles of IEL within human rights law requires human rights treaty bodies and tribunals 76 The CESCR and similar treaty bodies are often limited as to the length of their outputs, including their concluding observations and general comments. The ability to refer to a principle with a few words is therefore particularly useful in this context. See, for example, UNCESCR ‘Report on the Fortieth and Forty-First Sessions’ (28 April–16 May 2008, 3–21 November 2008) UN Doc E/2009/22-E/C.12/2008/3 para 57. 77 UNCESCR (n 58) para 11, fn 11.

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to be equipped with some knowledge and understanding of these principles. In order to integrate IEL and human rights law, the relevant decision-makers need to be aware of the principles underpinning environmental law and their relevance for the interpretation and application of human rights. This may require initiatives to train and educate human rights practitioners and adjudicators in relevant aspects of IEL. While the principles of IEL may offer guidance on how to approach environmental challenges, they should not direct or prescribe the interpretation of the human rights treaties outside of what the rules of interpretation permit. In light of this guiding role, it is important to note that any lack of definitive legal status in relation to the principles of IEL is not a bar to their usefulness. The principles remain useful as indicators of how environmental problems have been approached in international law, and how they could possibly be addressed where they pose a threat to human rights. Within these parameters, there remains great potential for greening human rights through the principles of IEL and harmonising human rights and environmental law.

6. CONCLUSION In order to continue to realise human rights in the face of the vast and urgent present-day challenges of environmental degradation and climate change, the interpretation of these rights must incorporate relevant environmental considerations. Greening human rights through interpretation can contribute to the protection of the environment as well as the fulfilment of human rights. The teleological interpretation of human rights requires an effective and evolutive interpretation that responds to present-day environmental threats and ensures the continued realisation of these rights. In order to achieve this, human rights bodies must understand how to approach environmental challenges, and, as this chapter shows, the principles of IEL are well placed to support this task. The Committee on Economic, Social and Cultural Rights has demonstrated a willingness to refer to relevant principles of environmental law, and its work illustrates that the interpretation of the rights in the Covenant can be influenced by these principles. The principles of IEL have the potential to guide the interpretation of human rights in environment-related matters, thereby enhancing the effective protection of human rights threatened by environmental harm as well as enhancing the protection of the environment on which these rights depend.

PART II

Legal perspectives on sustainability

5. The legal dimension of sustainability José Juan González Márquez 1. INTRODUCTION Although it is possible to identify indirect references to the principle of sustainable development1 in the Stockholm Declaration of 1972,2 it was not until the following decade that the Brundtland Commission coined the concept of sustainability that we know today.3 The Brundtland Commission defined sustainable development as development ‘that is capable of meeting the needs of present generations without compromising the ability of future generations to meet their own needs’.4 In the decade following the publication of ‘Our Common Future’ (1987), policymakers accepted the concept of sustainable development as a common thread running through economic and environmental policies.5 However, a more detailed analysis reveals that the specific content given to the concept varies considerably according to the importance assigned to facts, uncertainties and risks related to the environment and society. It has become increasingly clear that entirely different sets of normative and political decisions are at play based on respective concepts of sustainability.

1 Sam Adelman, ‘The sustainable development goals, anthropocentrism and neoliberalism’ in Duncan French and Louis Kotzé (eds), Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar Publishing 2018) 21. 2 The Stockholm Declaration of 1972 refers to the balance between the environmental protection and the economic development by saying that, in order to provide the maximum benefit to the people, the States should integrate economic development with protection of the environment. 3 Eduardo Gudynas, ‘Desarrollo sostenible: una guía básica de conceptos y tendencias hacia otra economía’ (2010) 4 Otra Economía, Revista Latinoamericana de Economía Social y Solidaria 45. 4 UN Secretary-general; World Commission on Environment and Development, ‘Our Common Future’ (UN Digital Library, 1987) https://​digitallibrary​ .un​.org/​record/​139811​?ln​=​es  accessed 19 April 2022. 5 Marius De Geus, ‘Sostenibilidad y Tradición Liberal’ (1999) 13 Revista Internacional de Filosofía Política 25.

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Since 1987, various international conventions and other instruments of international law have recognised this principle, but the Rio Summit was the spearhead for the evolution of the paradigm of sustainable development. The Rio Declaration on Environment and Development of 19926 embraced the Brundtland definition of sustainable development as follows:7 The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations (Principle 3) […] In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it (Principle 4).

As of 1992, the formalisation of the sustainable development principle had transcended a whole series of political spaces and international forums, which contributed to constructing a ‘new governance framework to face a more harmonious development among all levels (environmental, economic, social and institutional)’.8 However, after several decades of discussion, scholars have not conclusively resolved the status of sustainability. Although often presented as a principle, sustainability may also be understood as a paradigm that stands as one of the world’s law and policy pillars. Along this path towards the consolidation of the sustainability paradigm, in 2000 the United Nations Millennium Summit was held in New York. At this event, the leaders of 189 nations committed to the content of the Millennium Declaration, made up of the eight Millennium Development Goals. Goal 7 of this document is ‘to guarantee the sustainability of the environment’. Given that the Millennium Development Goals would expire in 2015, during the Rio + 20 Summit in 2012 in Rio de Janeiro, Brazil, preparatory work began to define the Sustainable Development Goals (SDGs).9 The final document of the Rio + 20 Summit, ‘The Future We Want’, proposed the creation of an open working group to prepare a geographically fair, equitable and balanced proposal for the SDGs. In September 2015, 193 member states in

6 The United Nations Conference on Environment and Development, ‘The Rio Declaration on Environment and Development’ (1992) www​.iau​-hesd​.net/​sites/​default/​ files/​documents/​rio​_e​.pdf accessed 19 April 2022. 7 Louis Kotzé and Duncan French, ‘Introduction’ in Louis Kotzé and Duncan French (eds), Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar Publishing 2018) 47. 8 Diana Durán, Proyectos ambientales y sustentabilidad (Lugar Editorial 2012) 39. 9 Adelman (n 1) 33.

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the UN General Assembly unanimously approved the SDGs.10 In this way, the sustainable development objectives gave content to the paradigm of sustainability. As Kotzé asserts: ‘The SDGs are cast in aspirational language which seeks to convey the determination of the world to improve the lives of people; protect the planet; ensure that everyone enjoys prosperous and fulfilling lives; foster peaceful, just and inclusive societies free from fear and violence; and revitalise the global partnership for sustainable development to ensure the achievement of the goals.’11 Sustainability became the first example of an open political concept, an abstract formula on which all possible parties can agree because the term sounds good. Today, sustainability expresses the intention to do things the right way: it constitutes a pretext to achieve the most varied political agreements, but it does not initiate radical and rigorous political measures. Due to this mutation, sustainability has become one of the most corrupted concepts of recent decades. Scholars have distinguished between two main types of sustainability: weak sustainability and strong sustainability.12 Those who support the idea of weak sustainability assume that there is a very high degree of sustainability between human capital and natural capital.13 Weak sustainability assumes that natural capital and manufactured capital are essentially substitutable and considers that there are no essential differences between the kinds of well-being generated.14 According to Ott: weak sustainability argues that what counts is the overall value of the bequest package. Natural and artificial capital are, in principle, substituted. Therefore, the depreciation and degradation of human capital is permissible under the idea of intergenerational justice if artificial capital is produced at the same rate. […] Strong sustainability, in contrast, emphasizes that the human sphere is embedded in a natural system (‘biosphere’) and assumes that natural limits owed to constrain our actions.15

Sustainability has obvious economic connotations since it is about correctly managing resources to ensure intergenerational justice. However, Principles ibid 33. Kotzé and French (n 7) 44. 12 Pelenc Jérôme and Ballet Jerôme, ‘Strong sustainability, critical natural capital and the capability approach’ (2015) 112 Ecological Economics 37. 13 DC Gibbs, J Longhurst, and C Braithwaite, ‘Struggling with sustainability: weak and strong interpretations of sustainable development within local authority policy’ (1998) 30 Environment and Planning 1532. 14 Ekins Paul et al, ‘A framework for the practical application of the concepts of critical natural capital and strong sustainability’ (2003) 44 Ecological Economics 170. 15 Konrad Ott, ‘The case for strong sustainability’ in Konrad Ott and P. Thapa (eds) Greifswald’s Environmental Ethics (Steinbecker Verlag Ulrich Rose 2003) 62. 10 11

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3 and 4 of the Rio Declaration do not specify the legal mechanisms to put pro-future and intergenerational justice into action, which is essential if we want to pass on a more habitable world to future generations.16 More than principles, sustainability and the right to live in a healthy environment constitute environmental law’s macro-objectives.17 Both ideas propose a rational administration of natural systems so that the present generation transfers the support base of life under similar conditions to future generations.18 As Werner Hediger has held, ‘sustainable development is a global challenge which requires a progressive transformation of our economies, such as to satisfy the needs and preferences of the present generation without compromising the opportunity of future generations to meet their own aspirations’.19 There is still a long way to go to reach sustainability and it implies substantial transformation of the legal institutions that today govern the economy. In most cases, this transformation is still in progress. This article will try to respond to the question: what does the adoption of the sustainability principle imply for the legal system? And so, in light of the comparative law, it will analyse the route that transformations of legal institutions must follow.

2.

THE RECEPTION OF SUSTAINABILITY IN COMPARATIVE LAW

Sustainability has become a relevant guideline to promote development based on the protection and conservation of natural resources for future human generations instead of the maximum profitability of natural resources in the short term. In the legal arena, sustainability does not have a homogeneous or standardised meaning.

16 Gabriel Real Ferrer, ‘Sostenibilidad, transnacionalidad y transformaciones del derecho’ (2012) 32 Revista de Derecho Ambiental 3. 17 In fact, although it is true that the concept of sustainable development coined by Brutland derives the so-called principle of sustainability, the truth is that it is only called a principle because the Rio Declaration is divided into principles and not because it can be considered in itself as a principle. 18 Antonio Herman Benjamín, ‘Objetivos do direito ambiental’ in A Herman Benjamín and JC Meloni (eds), O futuro do controle da poluição e da implementação ambiental (Impressa Oficial 2001) 5. 19 Wermer Hediger, ‘Weak and strong sustainability, environmental conservation and economic growth’ (2006) 19 Natural Resource Modeling 359.

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The political constitutions in various countries have recognised sustainability in different ways. Sometimes, as in the cases of Argentina20 and South Africa,21 the Constitution refers to sustainable development in the same terms used by the Brundtland report. Other times, as is found in Mexico22 and Brazil,23 sustainable development is inserted based on the State’s duty to protect the environment or to guarantee the right to a healthy environment. In other cases, as happens in Venezuela, it is placed within the economic chapter or linked to the ecological ordering of the territory.24 However, incorporating sustainability in the political constitutions just establishes the bases for the legislature to develop the legal institutions that shape this idea. Thus, we agree with Nusdeo when she points out that sustainability is an economic paradigm that provides the basis for creating a legal structure called environmental law.25 Consequently, to understand the implications of sustainability, it is necessary first to elucidate its legal nature.

20 Article 41 of the Argentinian Constitution holds: ‘All inhabitants enjoy the right to a healthy, balanced environment, suitable for human development and for productive activities to satisfy present needs without compromising those future generations; and they have to protect it.’ 21 Article 24 of the Political Constitution of South Africa holds: ‘Everyone has the right […] (b) to have a protected environment, for the benefit of present and future generations, through favourable legislation and other measures that (:) (iii) ensure ecologically sustainable development and the use of natural resources while promoting justified economic and social development.’ 22 Article 25 of the Mexican Constitution holds: ‘The State is responsible for the leadership of national development to ensure that it is comprehensive and sustainable.’ 23 Article 225 of the Political Constitution of Brazil holds” ‘Everyone has the right to an ecologically balanced environment which is a public good for the use of the people and is essential for a healthy life, and both the Government and the community have a duty to defend and preserve (the environment) to present and future generations.’ 24 Articles 127 and 128 of the Political Constitution of Venezuela hold, respectively, ‘It is a right and duty of each generation to protect and maintain the environment for the benefit of itself and the future world’ and ‘The State will develop a policy of spatial planning considering the ecological geographic, population, social, cultural, economic, political realities, by the premises of sustainable development’. 25 Ana María Nusdeo, ‘Sustentabilidad y derecho: posibles respuestas institucionales’ in Sela (ed), El derecho, el medio ambiente y las crisis actuales en el capitalismo mundial (Libraria 2016) 221.

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THE LEGAL NATURE OF SUSTAINABILITY

As Adelman holds, the principle of sustainability is simple, but its implications for the science of law are complex.26 Many scientific documents have explained its economic, social and environmental dimensions.27 However, its legal implications remain poorly understood.28 In this regard, Moller points out: Since the so-called Brundtland report (United Nations, 1987) and the United Nations Conference on Environment and Development in Rio de Janeiro (1992), the concept of sustainable development has been accepted worldwide in the political and scientific sphere as a point of reference in the development discussions. But there is still a wide range of different interpretations, even contradictory and mutually exclusive (Brugger and Lizano, 1992; Goodland et al., 1994; United Nations, 1987, 1992, 2000; Jacobs, 1995; Ecofondo / Cerec, 1996; Ocampo, 1999) Kopfmüller et al, 2001; Gallopin, 2003; Gligo, 2006; Díaz and Escárcega, 2009).29

In the field of law, we can also identify different ways of approaching sustainability. It has been considered a principle for public policies, a human right, a source of law, or even part of international customary law. Therefore, in deepening the analysis of the legal dimension of sustainability, we must consider several factors. First, sustainability is not a principle but a paradigm that stands as one of the world’s environmental law and policy pillars.30 Second, living in an economy governed by sustainability remains an aspiration of humanity but is not yet a reality. Finally, sustainable development demands the modification of fundamental and well-established legal institutions in all legal systems. These modifications are similar to the changes

26 Adelman (n1)21 has said that "Sustainable development is a deceptively simple idea that is widely incorporated in national and international environmental law, but its meaning is controversial." 27 Miren Artaraz, ‘Teoría de las tres dimensiones de desarrollo sostenible’ (Ecosistemas, February 2002) www​.aeet​.org/​ecosistemas/​022/​informe1​.htm accessed 19 April 2022. 28 José Juste, ‘El Derecho Internacional Ambiental 50 Años Después De La Conferencia De Estocolmo’ in José Juan González Márquez (ed), El futuro del Derecho Ambiental 50 Años después de la primera ley ambiental en México (Universidad Autónoma Metropolitana 2022) 67. 29 Rolf Moller, ‘Principios de desarrollo sostenible para América Latina’ (2010) 9 Ingeniería de Recursos Naturales y del Ambiente 102. 30 According to the Dictionary of the Spanish Language, a paradigm is a theory or set of theories whose central core is accepted without question and that provides the basis and model for solving problems and advancing knowledge.

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experienced in legal systems when humanity transitioned from slavery to feudalism and from feudalism to capitalism. Sustainability is a new stage in the history of humanity to which we all want to arrive, but we have not arrived yet. This stage involves harmonising two main objectives: environmental protection and economic development. Both sides of the sustainability coin and their connections to each other have to be ruled by the law. As Real says, ‘sustainability is nothing more than a process by which an attempt to build a global society capable of perpetuating itself indefinitely over time in conditions that ensure human dignity’.31 In other words, sustainability is significantly linked to preserving planetary boundaries. So, it implies modifying the current global development model because it is incompatible with ecological balance. As Adelman holds, ‘Endless economic growth is not sustainable if it breaches absolute biophysical limits and planetary boundaries and ignores the rupture of the Earth system in Anthropocene’.32 Therefore, sustainable development demands a redesign of legal institutions that establish the bases for mitigating the phenomena that are disturbing those borders. In that sense, it refers to how legal systems regulate: (1) climate change, (2) loss of biodiversity, (3) nitrogen and phosphorus flux, (4) ocean acidification, (5) ozone layer depletion, (6) freshwater, (7) land-use changes, (8) chemical pollution and (9) atmospheric aerosols. At the same time, arriving at a sustainable scenario demands that the legal system define the new rules that allow compliance with the SDGs. Consequently, sustainability also implies the definition of the roadmap for constructing a legal framework that enables the conservation of the planetary borders. SDGs provide essential inputs in defining a roadmap for development worldwide for the coming 15 years.33 Both planetary boundaries and SDGs support the transformation of environmental law addressed to building a sustainable civilisation. In this way, sustainability constitutes not a legal principle but a criterium of public policy that guides the route map for environmental law to follow. Some scholars talk about the ‘right to sustainability’ based on this idea.34 In the following sections, we delve into this analysis.

31 Gabriel Real Ferrer, ‘La sostenibilidad tecnológica y sus desafíos frente al derecho’ (2015) 20 Revista de direito ambiental 19. 32 Adelman (n 1) 15. 33 Kotzé and French (n 7) 43. 34 María Emilse García, ‘Derechos humanos y sustentabilidad en el marco del sistema interamericano’ (2006) 82 Lecciones y Ensayos Universidad de Buenos Aires Facultad de Derecho 214.

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THE LEGAL IMPLICATIONS OF SUSTAINABILITY

As already mentioned, sustainability means a new civilisational model for humanity.35 Kozien holds that sustainable development is the basis for weighing public interest and individual interest in the scope of environmental protection.36 The different civilising stages that humanity has gone through throughout history have implied relevant changes in the content and extent of certain legal institutions. Therefore, sustainable development implies modifying the legal rules that govern the functioning of the global economy, particularly those related to:37 (a)

The human right to individual freedom.

(b) The old institution of private property. (c)

The national sovereignty.

(d) The civil liability system. Let us discuss the changes these institutions have experienced in recent years under the impulse of environmental law principles, including sustainability.

35 As Brown: ‘building a sustainable economy affects all facets of our lives. It can affect the way we light our houses, what we eat, where we live, how we use our rest time, and how many children we have. The sustainable economy provides us with a world where we are part of nature and not alien to it.’ Lester Brown, Eco-Economy Building an Economy for the Earth (WW Norton & Company 2001) 82. 36 Adam Kozien, ‘The principle of sustainable development as the basis for weighing the public interest and individual interest in the scope of the cultural heritage protection law in the European Union’ (2021) 13(7) Sustainability 2. 37 This new civilising model includes the consideration of a more equal society, as proposed by the so-called Millennium commitments, adopted by the members of the United Nations. At the 2000 Millennium Summit, rulers of rich and poor countries alike made the commitment – at the highest political level – to set eight time-bound goals that, when met, will end extreme poverty around the world. Goals 1 to 7 committed them to liberate the poor from poverty and hunger, to put all children in school, to achieve the autonomy of women, to reduce infant mortality and to ensure a sustainable environment. Goal 8 expressly recognises that the eradication of world poverty can only be achieved through global collaboration for development.

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Limits to Individual Freedom

Sustainable development is incompatible with absolute individual freedom. Individual freedom has provided the base for the so-called liberty to pollute38 or the right to destroy.39 In a sustainable economy, individual freedom is subject to the limits that suppose, on the one hand, its purpose and, on the other, not harming others. Its exercise must be oriented to the satisfaction of the common good and to be articulated in a context of intergenerational solidarity and solidarity with nature. The obligation to preserve the environment for future generations necessarily implies limiting the human right to individual freedom. The coexistence between human rights and SDGs could be complicated.40 The regulations on the circulation of vehicles in some countries are examples of rules limiting the right to personal freedom addressed to protection of the environment. For instance, in Mexico, cars that do not approve the verification of polluting emissions cannot circulate on the streets and highways. The Congestion Charge in London,41 established early in the century, and the road use tax in Singapore also limit individual freedom in the service of the environment.42 More recently, some political constitutions have expressly founded limitations on the right to liberty in their nature as mechanisms to avoid environmental deterioration. For example, article 19, numeral 8 of the Political Constitution of the Republic of Chile, states: ‘The law may establish specific restrictions on the exercise of certain rights or freedoms to protect the environment.’ In addition to the constitutional provision, the explanatory statement that accompanied the Law of General Basis of the Environment of that country (1992) states: ‘Hence, human freedom, at this point in history, must recognise as a limit the necessity to preserve the planet for the next generations.’

38 Binder, ‘El principio de daño de Mill y los derechos humanos como justificación para restringir la libertad de contaminar’ in Jiménez and others (eds), Crisis climática, transición energética y derechos humanos, Vol 2 (Fundación Heinrich Böll 2020) 120. 39 Martine Rèmond-Gouilloud, El derecho a destruir: ensayo sobre el derecho del medio ambiente (Losada 1994) 305. 40 Lynda Collins, ‘Sustainable development goals and human rights: challenges and opportunities’ in Duncan French and Louis Kotzé (eds), Sustainable Development Goals Law, Theory and Implementation (Edward Elgar Publishing 2018) 70. 41 Isabel Granada, ‘Peaje a la congestión en Londres: su aporte a la movilidad sostenible’ (2009) 29 Revista de Ingeniería Universidad de los Andes 138. 42 Lye Lin-heng, ‘Environmental taxation in the regulation of traffic and the control of vehicular pollution in Singapore’ in Janet Milne et al (eds), Critical Issues in Environmental Taxation: International and Comparative Perspectives Volume I (Oxford University Press 2003) 389.

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Similarly, the Constitution of Venezuela (1999) states in its article 112: ‘All persons can freely engage in the economic activity of their choice, with no more limitations than those provided for in this Constitution and those established by law, for reasons of human development, security, health, protection of the environment or others of social interest.’ Following this trend, the Constitution of Colombia states in its article 333: ‘the law shall delimit the scope of economic freedom when required by the social interest, the environment, and the Nation’s cultural heritage.’ In the same vein, in Haiti, article 253 of the Political Constitution holds: ‘Since the environment is the natural framework of the population's life, practices likely to disturb the ecological balance are formally prohibited.’ Finally, article 8 of the Political Constitution of Paraguay asserts: ‘For environmental protection, the activities likely to produce ecological alterations shall be regulated by law. It may also restrict or prohibit those that are dangerous.’ In other countries, political constitutions’ limitation of individual freedom in protection of environmental protection is indirect rather than explicit. Among these countries we can mention Argentina, whose Political Constitution asserts in its article 41: ‘The entry into the national territory of currently or potentially dangerous waste, and radioactive is prohibited.’ So, it might be said that building a sustainable economy necessitates the establishment a series of limitations to individual freedom. 4.2

The Ecological Function of Private Property

Sustainability is not compatible with the idea of ​​property as an absolute individual right postulated by the Code of Napoleon. Sustainability calls for an evolution of individual property legal regimes.43 The transition from feudalism44 to capitalism45 implied a severe transformation of private property

43 Carlos Alfonso Cárdenas Hernández, ‘La limitación ambiental al derecho de la libertad de empresa’ (2016) 8 Derecho y Realidad 404. 44 The fragmentation of the feudal property right as a fundamental presupposition that allowed the viability of this economic system is clearly narrated by Huberman when he points out: ‘The lord of a fief, as a servant, did not own the land, but was the tenant of another lord of more hierarchy. The serf, villain or freedman occupied the land given by the lord of the manor who in turn had it in the name of a count, who in turn had received it from a duke, like this one from the king. Sometimes it went further, because the king had given it from another king’: Leo Huberman, Los bienes terrenales del hombre (Ediciones de Cultura Popular 1973) 16–17. 45 Karl Rener has described the capitalist property system in the following terms: ‘The property right, dominium, is the global legal power of a person over a tangible object. As regards the object, property is a universal institution: all corporeal goods, including land, can be objects of property if they are recognized as such by law and

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rights. Socialist governments postulated the idea of collective ownership of land and other means of production. In the same way,46 sustainability, as a new economic development model, demands a profound transformation of the legal institution of property. Some authors even consider that this transformation could conflict with the protection of the human rights of the first generation and hold that in the roll-out of the SDGs, it will be essential to ensure that civil rights are not neglected.47 However, as Herman Benjamin holds, many environmental attacks seek to protect private property rights.48 Therefore, in a sustainable economy the individual property must fulfil an ecological function, and so the owner must have more obligations than prerogatives.49 Nevertheless, the environmental role of property does not only imply limiting private property in favour of of ecological protection. In addition, property rights should not just protect land and its traditional accessions (that is, flora and fauna); rather, the institution of the property must include new objects of legal protection. The legal order must: 1. recognise the legal existence of environmental services; 2. assume that limitations on property rights for ecological reasons merit the payment of compensation; and 3. recognise that the environment is an intangible legal asset of collective ownership and different from the elements that comprise it. In this equation, although some natural elements may fall into the private domain, the environment is conceived as an object of supreme protection that no one can own but everyone has the right to enjoy and protect.

are not made by special provision extra commercium. The property is equally universal with respect to the subject. They all have a similar capacity to be owners, and to be owners of things of any kind.’ In Michell Tigar and Madelaine Levy, El derecho y el ascenso del capitalismo (4th edn, Siglo XXI 1998) 187. 46 As Merryman points out: ‘It is often said that the tradition of socialist law originated at the time of the October Revolution. Before that event, the current legal tradition in the Russian Empire was civil law. One of the intentions of the Soviet revolutionaries was to abolish the bourgeois civil legal system and replace it with the new socialist legal order’: John Henry Merryman, La tradición jurídica romano-canónica (Fondo de Cultura Económica 1971) 18. 47 Collins (n 40) 71. 48 Antonio Herman Benjamín, ‘Laudato Si, Ecologização Da Justiça Social E O Juiz Planetário’ (2021) 7 Revista Estudos Institucionais 563. 49 As Leme Machado says, ‘the goods that make up the planetary environment, such as water, air and soil, must satisfy the common needs of all the inhabitants of the Earth’: Paulo A. Leme Machado, Direito ambiental brasileiro (11th edn, Malheiros Editores 2003) 49.

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On the other hand, for the human right to an adequate environment to exist, if some natural elements are under private control the owner’s rights must be seriously limited, with the aim of preserving the ecological balance among natural elements. Environmental protection depends on such ecological balance. National legal systems of many countries exemplify this trend recognising the environmental function of property. For instance, in Mexico, the Political Constitution of 1917 was pioneering in its recognition that private property has a social function. That idea empowered the nation to impose the modalities dictated by the social interest on private property. We can affirm that the concept of the ​​ social function of property gives full foundation to considering a property system that guarantees the right to a healthy environment and the sustainability of the economic system. However, it was a reform to the third paragraph of constitutional article 27 approved in 1987 that gave full and indisputable foundation to the environmental function of property, recognising that the Nation’s powers to modulate property rights can also be exerted to protect the ecological balance.50 After Mexico, other political constitutions adopted the idea of the ​​ environmental function of property. The Political Constitution of the Argentine Nation establishes this function in its article 41.51 Similarly, according to Marques Osorio, the environmental function of property is included in the Brazilian Constitution as a founding principle, of immediate application, in an economic system designed to guarantee a dignified life for all and social justice for all.52 The Colombian Political Constitution clearly states in article 48 that ‘property is a social function that implies obligations’. However, recognition of the environment and ecological functions as a specific subject of legal protection is still pending in most legal regimes. For example, in Latin America, although most environmental laws include the definition of a concept of the environment, generally this does not mean the full recognition of the environment as a specific object of protection by the legal system.53 This reform was published at the Diario Oficial de la Federación 10-08-1987. Gonzalo Perez Pejcic, ‘Primer ensayo sobre la función ambiental de la propiedad Presentación de la estructura tripartita del derecho de propiedad’ (2014) 92 Lecciones y Ensayos 161. 52 Leticia Marques Osorio, ‘Les fonctions sociales de la propriété en Amérique Latine’ (Cités Territoires Gouvernance Le territoire au cœur de la transition  2014)  www​.citego​.org/​bdf​_fiche​-document​-1355​_fr​.html​#:​~:​text​=​La​%20fonction​ %20sociale​%20de​%20la​%20propri​%C3​%A9t​%C3​%A9​%20figure​%20dans​%20la​ %20Constitution​,principes​%20de​%20la​%20justice​%20sociale.  accessed 19 April 2022. 53 José Juan González Márquez, La responsabilidad por el daño ambiental en América Latina (PNUMA 2003) 14. 50 51

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The same happens in the case of the legal recognition of environmental functions. This is usually mentioned tangentially, in laws such as Mexico’s Sustainable Forest Development Law (2018), but as yet there is no legal framework. By contrast, in Spain the Constitutional Court, in ruling 102/95, stated: The environment cannot be reduced to a mere sum or juxtaposition of natural resources and their physical base, but it is the complex framework of the relations of all the elements that, by themselves, have own and previous existence, but whose interconnection gives them a meaning transcendent, beyond the individual of each one of them.54

All these gaps made it difficult to build a sustainable property regime. So, in many countries, the environmental function of property is still an aspiration and so, sustainability lacks of this fundamental support. 4.3

National Sovereignty from the Environmental Point of View

The charter of the United Nations recognised the sovereignty of a State, according to which nothing should authorise the intervention of a State in matters that are essentially within the internal jurisdiction of another State. However, the globalisation of the economy and environmental problems have put this idea of national ​​ sovereignty in crisis. The traditional idea of ​​national sovereignty assumes, among other issues, that there is no power above the power of the Nation State. This idea of​​ national sovereignty can represent a severe obstacle to solving the leading global environmental problems. The transborder nature of the main environmental issues requires a multilateralism that presupposes a partial transfer of national sovereignty to a superior political organisation. The international community must empower this organisation to define policies and strategies. Such organisation is necessary even when such policies and plans are contrary to the specific national State aspirations.55 The principle of sustainability is not compatible with the traditional idea of ​​national sovereignty. The fight against the main environmental problems that afflict humanity necessarily presupposes the disappearance of the State’s absolute power to decide on internal affairs. Many reasons support this argument: (a) environmental issues have no borders; (b) environmental problems

54 Manuel Píñar Díaz, El derecho a disfrutar del medio ambiente en la jurisprudencia (Comares 1996) 94. 55 Becerra Manuel, ‘La Soberanía en la Era de la Globalización’ in Manuel Becerra and Klaus Theodor Müeller (eds), Soberanía y Juridificación en las Relaciones Internacionales (Universidad Nacional Autónoma de México 2010) 62.

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are matters of global interest; (c) sometimes the public policies adopted by a Nation State cause environmental deterioration. In addition to the above, the State’s right over its natural resources is not unlimited. This principle was recognised by the international community in number 21 of the Stockholm Declaration and reaffirmed in Principle 2 of the Rio Declaration. It is also included in article 3 of the Biodiversity Convention. It can even give grounds for the exercise of legal actions to attribute responsibility to a Nation State for damage that may be caused to the environment. For instance, the government of Mexico could be declared liable for destroying the rainforest during the construction of the so-called Train Maya in the south of the country. Sustainability implies moving rapidly and irreversibly towards creating a transnational legal space that will require a ‘tailor-made’ law, and away from classic patterns. A global law transcends conventional international law and imposes rules on states, corporations and individuals that cannot oppose individual or national interests. Gabriel Real calls this legal space ‘spherical law’.56 Examples of conscious and formalised transfer of sovereignty are few (one emblematic case is that of the European Union), but examples of effective loss, more or less intangible, are innumerable. Sovereignty is diluted, and with it the profile of the modern State is subject to two forces that weaken and transform it. The process is a progressive deterritorialisation of economic cycles and decision-making mechanisms that produce a disparate but continuous dissolution of sovereignty, giving rise to a new transnational space with unique characteristics. One of the first examples that illustrates how sovereignty has changed is the case of the European Economic Union. Its member States, in principle sovereign, ceded part of that sovereignty to shape the Union. In this sense, the German Basic Law states: For the realisation of a united Europe, the Federal Republic of Germany will contribute to the development of the European Union, which is obliged to safeguard democratic principles, the rule of law, social and Federation and the direction of subsidiarity and guarantees protection of the fundamental rights comparable in essence to that guaranteed by this Basic Law. To this end, the Federation may transfer sovereign rights by a law that requires the approval of the Bundesrat. Paragraphs 2 and 3 of article 79 apply to the creation of the European Union and the reforms of the constitutive treaties and any similar regulations by which this Basic

56 Gabriel Real, ‘Sostenibilidad, transnacionalidad y transformaciones del derecho’ in Maria Cláudia da Silva Antunes de Souza and Denise Schmitt Siqueira Garcia (eds), Direito Ambiental, Transnacionalidade e Sustentabilidade (Univali editora 2013) 23.

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Law is amended or supplemented in its content or make such possible reforms or complements.

The negotiations within the World Trade Organization and the deliberative bodies of regional trade treaties lead to arrangements that limit the traditional idea of national ​​ sovereignty, even though political constitutions do not recognise it. In the same way, the commitments assumed by national states in international environmental treaties mean limitations on national sovereignty in favour of solving problems, such as climate change, whose scope is beyond national borders. Finally, the principle of conventionality adopted by the Supreme Court of Justice of Mexico confronts the traditional idea of Westphalian sovereignty. In summary, the idea of absolute national sovereignty is incompatible with sustainability. Sustainability requires limitation of the sovereignty of nation States to decide on their internal affairs to preserve planetary borders. The globalisation of the economy also implies the globalisation of law, which is not compatible with a traditional idea of national sovereignty.57 Thus, to arrive at a sustainable economy, the environmental law has to create a series of legal institutions that limit national sovereignty in favour of global environmental protection. 4.4

Liability without Proof of Damage

Sustainable development revolves around intergenerational responsibility.58 It includes the idea that the current generation is responsible for passing the world on to future generations in at least a similar state to that in which they received it. Therefore, the current generation must preserve the global ecosystem and redress human actions’ environmentally adverse effects. In other words, sustainability implies intergenerational justice. The idea of intergenerational justice is one of the ethical foundations of environmental law. This idea integrates at least two essential elements: (a) the present generation must conserve nature for future generations to ensure the perpetuity of the human species; and

Jaakko Husa, Law and Globalization (Edward Elgar Publishing 2018) 33. Moller (n 29) 104 points out in this regard: ‘The first constitutive element of sustainable development is justice. The idea of ​​justice is based on the conviction that in the adjudication of rights and obligations, in the distribution of goods and burdens, in the distribution of the results of the efforts of everyone in a society, there should be no arbitrary differences. Justice applies to individuals and collective institutions.’ 57 58

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(b) future generations are entitled to at least the same quality of life standards as the current generation.59 In this way, sustainability also requires recognising that environmental damage is quite different from civil damage and establishing an original environmental liability system. There will only be an intergenerational liability if the present generation assumes responsibility for preventing and restoring ecological damages.60 In some countries, we can observe the tendency to shape the traditional civil liability system by trying to apply it to the particularities of environmental damage.61 Some of the main modifications that these countries have incorporated into their liability systems are: the reversal of the burden of proof; the adoption of the in dubio pro nature principle; the broad recognition of the legal standing to file environmental actions; and the creation of courts specialised in environmental matters. However, sustainability demands much more than a few modifications to the traditional system of civil liability. Building a more efficient environmental liability regime is necessary to eliminate the burden of proving in court that ecological damage already exists, because that is often almost impossible.62 The legal system must attribute the responsibility to repair any future environmental damage to those who have the ability to cause it, even when the damage has not yet appeared. We call this ‘liability without proof of damage’. This new liability system does not require a judicial procedure but is structured based on more disruptive legal institutions than those known up to now, such as non-collection taxation.63

5.

THE RELATIONSHIP BETWEEN SUSTAINABILITY WITH OTHER PRINCIPLES OF ENVIRONMENTAL LAW

In light of the analysis conducted in the previous sections, it is possible to affirm that the paradigm of sustainable development has a double character: it Herman Benjamin (n 18) 8. José Juan González Márquez, La responsabilidad por el daño ambiental. El paradigma de la reparación (Miguel Ángel Porrúa 2002) 355. 61 González Márquez (n 53) 67. 62 José Juan González Márquez, ‘Towards a new theory of environmental liability without proof of damage’ in Jamie Benidickson et al (eds), Environmental Law and Sustainability after Rio (Edward Elgar Publishing 2011) 189. 63 José Juan González Márquez, Tratado de Derecho Ambiental Mexicano Las instituciones fundamentales del Derecho ambiental (Universidad Autónoma Metropolitana 2017) 94. 59 60

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is foundational and aspirational. Therefore, although this paradigm outlines the objectives of environmental law, it is not self-applying. The paradigm of sustainability must be supported by the operational principles of environmental law and the legal institutions defined in light of such principles.64 For this reason, the transformations in the legal system that sustainability imposes do not include only the four main pillars analysed above. In addition, it is necessary to modify all those legal instruments that derive from the application of operational principles.65 From our point of view, sustainability has the mission of outlining the content of environmental law. Then sustainability has a transforming role in the science of law, since it has created new paradigms, such as the rights of nature. In the following section, we analyse how the paradigm of sustainability has influenced the evolution of Mexican environmental law to establish the bases of a sustainable development model.

6.

THE PARADIGM OF SUSTAINABILITY IN MEXICAN LAW

In Mexico, the Political Constitution incorporated the paradigm of sustainability by an amendment to article 25 in 1999. This provision, as amended in 2013, indicates: The State is responsible for national development to ensure that it is comprehensive and sustainable, that it strengthens the Sovereignty of the Nation and its democratic regime and that, through competitiveness, the promotion of economic growth and employment and a fairer distribution of income and wealth, allows the full exercise of freedom and dignity of individuals, groups and social classes, whose security this Constitution protects. Competitiveness will be understood as the set of conditions necessary to generate more significant economic growth, promote investment and generate employment.

In the following years the Congress of the Union approved various laws that included the word ‘sustainable’ in their titles, in an apparent reference to that paradigm.66

64 Operational principles such as the prevention, precautionary, user-payer, non-regression, polluter pays, access to information, public participation and access to justice principles, among others. 65 González Márquez (n 60) 86. 66 For instance, the General Law for Sustainable Development of Forest of 2003 or the General Law of Fishing and Sustainable Aquaculture of 2007.

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However, including the word ‘sustainability’ in the legislation’s title is not enough to provide the foundations for transiting towards a new model of development. The sustainable development model needs to be understood, explained and translated into legal institutions. These laws have to include legal provisions aimed at making sustainable development effective. An example is the prohibition on allocating forest land to other uses without the prior authorisation of the Federal Ministry of the Environment: the Mexican Supreme Court of Justice, in Decision number 698/2010 of 1 December 2010, held that exercise of the private property right is subject to the public interest and is not opposable to the community, but on the contrary, if necessary, the interests of society must be privileged in the terms expressly provided by the Constitution, as in the case of the right to the environment protected by article 4 of that Constitution. On the other hand, in Mexico, the constitutional bases of sustainable development are more clearly indicated in other provisions of the Constitution. The idea of ​​the environmental function of property is enshrined in the third paragraph of article 27 of the Political Constitution of the United Mexican States, and the principle of reparation of ecological damage is included in article 4. For some authors, even the incorporation in political constitutions of the human right to a healthy environment implies recognising the paradigm of sustainability. For instance, Brañes points out that ‘the constitutional prescription that the State and civil society must protect the environment implies that the Constitution promotes a model of sustainable development’.67 In Mexico, the Political Constitution already establishes the basis for a legislative agenda committed to sustainability, and some laws have created disruptive legal institutions that pave the way for that schedule. Still, this is not enough. It is necessary to review the extent to which current Mexican environmental law can be sufficiently effective to contain the transgression of planetary borders.

7. CONCLUSIONS Sustainability implies moving from a polluting economic system to one that is more environmentally friendly. Therefore, it requires modifying the legal institutions that support the old legal system, whose more relevant legal institutions have justified environmental degradation in favour of individual rights protection. So in most cases, these modifications have as a consequence the

67 Raul Brañes, ‘El Derecho para el desarrollo sostenible en la América Latina de nuestros días’ (2005) 2 Revista de Derecho Ambiental 21.

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limitation of rights that are considered fundamental, such as the right to private property and individual freedom. Similarly, the idea of intergenerational liability postulated by the Brundtland Commission leads to the necessary modification of the liability system as we know it today to establish a liability system without proof of harm. A few legal systems have incorporated some of these modifications, but still, there is much to do. Success in the battle against environmental degradation depends on the law creating the appropriate legal categories to arrive at a sustainable development model. It means a model that prevents or in some cases reverts the transgression of planetary borders. Finally, we cannot invoke the idea of national sovereignty as an argument to oppose forming a global environmental law that regulates national policies to preserve planetary borders. Sustainable development is supposed to build a legal superstructure of sustainability and ultimately nothing other than environmental law itself. In consequence, sustainability is not only a principle but a goal and, so far, a paradigm.

6. Sustainable management: political slogan or legal norm? Trevor Daya-Winterbottom 1. INTRODUCTION This chapter explores the ambition and reality of promoting the sustainable management of natural and physical resources, transposed from the international sphere into New Zealand domestic law by the Resource Management Act 1991 (RMA). In particular, it examines the challenges and reality of a weak anthropocentric approach to the application of the legal principle of sustainable management adopted by the New Zealand Courts during the period 1997–2014, and the ambition of a more ecological approach subsequently adopted by the Senior Courts. The thesis of this chapter is that law is a design discipline that creates ‘useful devices’ to drive societal transformation.1 From an environmental perspective, the devices created to promote sustainable management include framework statutes such as the RMA, and the subsidiary planning documents promulgated under them to give effect to the concept at local level. Views about the meaning and normative effect of sustainable management vary, with some scholars viewing the concept as a political ideal with catalytic potential to develop the law2 and other scholars viewing the concept as an influential interpretive tool that can generate significant developments in the law.3 Vaughan Lowe also provided the insight that sustainable management ‘gains normative force’ when ‘employed by judges’.4 1 David Howarth, Law as Engineering: Thinking about What Lawyers Do (Edward Elgar Publishing 2013) 10. 2 Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart Publishing 2011) 81. 3 Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law & the Environment (3rd edn, Oxford University Press 2009) 127. 4 Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’ in AE Boyle and DAC Freestone (eds) International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press 1999) 33.

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Returning to the thesis that law is a design discipline, David Howarth observed that judges build ‘long-lasting and useful legal structures’ by resolving ‘problems that have arisen in structures and devices designed and built by others’.5 This chapter therefore focuses on the useful devices created by the Senior Courts in New Zealand to achieve the sustainable management of natural and physical resources. More widely, analysing domestic environmental law from different countries using this research method will (hopefully) provide an internationally applicable ‘understanding [of] how similar problems […] are addressed in a wide range of now mature systems’ that ‘is useful and important to continuously improve environmental law and thereby to protect the environment’.6 The chapter will therefore conclude by setting a research agenda for the future (in terms of what environmental law can achieve) as we move towards new milestones in 2030.

2.

LEGISLATION FOR SUSTAINABILITY

New Zealand legislated for sustainable management in the dynamic period between the release of the report of the World Commission on Environment and Development ‘Our Common Future’ in 19877 and the United Nations Conference on Environment and Development in Rio de Janeiro in 1992 by enacting the RMA. The statutory purpose of the RMA is to promote the sustainable management of natural and physical resources. In particular, s 5(2) of the RMA provides that sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety while— (a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.

Howarth (n 1) 94, 95. Jorge E Vinuales, ‘Comparative Environmental Law: Structuring a Field’ in Emma Lees and Jorge E Vinuales, The Oxford Handbook of Comparative Environmental Law (Oxford University Press 2019) 31. 7 The World Commission on Environment and Development, Our Common Future (Oxford University Press 1987). 5 6

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In his speech on the third reading of the Bill in Parliament, the then Minister for the Environment, Simon Upton, explained the construction of the statutory purpose in this way:8 The law should restrain the intentions of private land users only for clear reasons and through the use of tightly targeted controls that have minimum side effects […] The Bill provides us with a framework to establish objectives by a physical bottom line that must not be compromised. Provided that those objectives are met, what people get up to is their affair. (Emphasis added)

During the RMA’s initial period on the statute book there was a controversial policy debate about whether sustainable management allowed decision-makers to balance social, economic and environmental matters when, for example, deciding resource consent applications – or whether the provisions in s 5(2)(a), (b) and (c) amounted to a ‘non-negotiable environmental bottom line that must be met in all cases’.9

3.

OVERALL ORTHODOXY

In North Shore City Council v Auckland Regional Council,10 the New Zealand Environment Court (NZEnvC) resolved the debate about the meaning of sustainable management in favour of an overall broad judgment approach. The NZEnvC was required to consider a district plan zoning appeal to determine the northern boundary of the Auckland metropolitan urban limits. At issue was whether the Okura estuary on Auckland’s North Shore should be included within the urban zone to provide for future residential subdivision and development. The NZEnvC agreed that the urban zone should be expanded outward into part of the estuary notwithstanding the potential adverse effects of development on the ecological values of the estuary, and stated:11 To conclude that the latter necessarily overrides the former, with no judgment of scale or proportion, would be to subject s 5(2) to the strict rules and principles of statutory construction which are not applicable to the description of the statutory purpose […] The method of applying s 5 then involves an overall broad judgment of whether a proposal would promote the sustainable management of natural and physical resources. That recognises that the [RMA] has a single purpose. Such a judgment allows for a comparison of conflicting considerations and the scale or degree of them, and their relative significance or proportion in the final outcome. Hansard (4 July 1991) 516 NZPD 3018-3020. David AR Williams and others (eds), Environmental and Resource Management Law in New Zealand (2nd ed, Butterworths 1997) 75. 10 North Shore City Council v Auckland Regional Council [1997] NZRMA 59. 11 ibid [93]–[94] (Judge Sheppard). 8 9

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Put simply, the NZEnvC found that some degree of proportionality was required and that strict rules of statutory interpretation should not be applied – they were not appropriate in the context of promoting sustainable management. The decision in North Shore was subsequently upheld on appeal by the New Zealand High Court (NZHC) in Green and McCahill Properties Ltd v Auckland Regional Council.12 However, these decisions were reached without reference to the Parliamentary debates, which, in the view of the United Kingdom House of Lords and the New Zealand Court of Appeal (NZCA), can provide useful background regarding the construction of legislation.13 While the overall broad judgment approach articulated in North Shore remained the prevailing orthodoxy during the period 1997–2014, there was some disquiet about the value judgment implicit in the interpretation of sustainable management. For example, Elias CJ, writing extra-judicially in her 2013 Salmon Lecture, observed that ‘At-large judicial balancing may be at best unconvincing and at the worst may mask political judgments which cannot be adequately justified by reference to legal standards’.14

4.

OUTSTANDING NATURAL CHARACTER

The New Zealand Supreme Court (NZSC) was given the opportunity to reimagine how sustainable management could be interpreted in Environmental Defence Society Inc v The New Zealand King Salmon Company Ltd15 in the context of a regional coastal plan zoning appeal to provide for the establishment of additional marine farms in the Marlborough Sounds in an area where they would otherwise (absent the plan change) have been prohibited. At issue were the potential adverse effects of additional marine farms on areas of outstanding natural character and outstanding natural landscape in the coastal environment, measured against the policies in the New Zealand Coastal Policy Statement 2010 (NZCPS). The decision in King Salmon was an important circuit-breaker in providing a clear statement regarding the important role played by planning documents under the RMA in giving practical effect to the sustainable management of

North Shore City Council v Auckland Regional Council [1997] NZRMA 519. Pepper v Hart [1978] 1 All ER 1132; Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203. 14 Sian Elias, ‘Righting Environmental Justice’ [2014] RM Theory & Practice 47, 65. 15 Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited & Ors [2014] NZSC 38, [2014] 1 NZLR 593. 12 13

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natural and physical resources at national, regional and district levels. For example, the NZSC held:16 Section 5 was not intended to be an operative provision, in the sense that it is not a section under which particular planning decisions are made; rather it sets out the RMA’s overall objective. Reflecting the open-textured nature of pt 2, Parliament has provided for a hierarchy of planning documents the purpose of which is to flesh out the principles in s 5 and the remainder of pt 2 in a manner that is increasingly detailed both as to content and location. It is these documents that provide the basis for decision-making, even though pt 2 remains relevant. It does not follow from the statutory scheme that because pt 2 is open-textured, all or some of the planning documents that sit under it must be interpreted as being open-textured.

Additionally, the NZSC provided guidance in relation to the application of policy statement and plan provisions which require that any potential adverse effects on the environment should be avoided. It stated:17 whether ‘avoid’ (in the sense of ‘not allow’ or ‘prevent the occurrence of’) bites depends upon whether the ‘overall judgment’ approach or the ‘environmental bottom line’ approach is adopted. Under the ‘overall judgment’ approach, a policy statement direction to ‘avoid’ adverse effects is simply one of a number of relevant factors to be considered by the decision maker, albeit that it may be entitled to greater weight; under the ‘environmental bottom line’ approach, it has greater force.

The NZSC therefore concluded that it was difficult to see that reference to part 2 of the RMA was ‘either necessary or helpful in order to interpret the policies, or the NZCPS more generally, absent any allegation of invalidity, incomplete coverage or uncertainty of meaning’.18 Put simply, an overall broad judgment approach was not an appropriate starting point. The statutory context of the NZSC decision in King Salmon were the policy statement and plan preparation provisions in part 5 of the RMA that require each descending layer of planning documents in the statutory hierarchy from national to district level to give effect to sustainable management, while not being inconsistent with any extant higher-level planning documents. The policies in the NZCPS that sought to avoid any adverse effects on areas of outstanding natural character and outstanding natural landscape in the coastal environment were therefore determinative as to whether the regional plan could be changed to provide for more marine farms. While the more ambitious ecological approach to interpreting sustainable management adopted by the NZSC in King Salmon could (on a narrow reading ibid [151]. ibid [97]. 18 ibid [90]. 16 17

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of the decision) be ascribed to the robust policies in the NZCPS, more widely the decision illustrates how the resource management system can achieve the sustainable management of natural and physical resources where policy statement and plan provisions provide the detailed guidance about the location of activities (or the desired environmental bottom lines that are required to be met) envisaged by the statutory architects. Arguably, the King Salmon decision left open the question as to whether the ratio decidendi should also be applied in the context of resource consent application decisions under part 6 of the RMA.19 This question was subsequently answered by the Senior Courts in RJ Davidson Family Trust v Marlborough District Council20 and Tauranga Environmental Protection Society Inc v Tauranga City Council and Bay of Plenty Regional Council,21 considered below.

5.

UNIQUE BIODIVERSITY VALUES

In Hawke’s Bay Regional Development Company Ltd v Royal Forest and Bird Protection Society of New Zealand Inc22 the Senior Courts were required to consider whether the Minister of Conservation was obliged to have regard to relevant statutory planning policies as a mandatory consideration. The decision concerned the proposed revocation of the specially protected conservation park status of 22ha of land in the 93,260ha Ruahine Forest Park in the North Island, and exchange of that land with adjacent land (147ha Smedley block) to enable the construction of a dam and reservoir. The park was described by the Department of Conservation as unique in terms of its geology, ecology, vegetation, lakes and habitat for native fauna (including, birds, skinks, geckos, bats and giant snails). Sections 17B and 17D of the Conservation Act 1987 provide for statutory planning documents to be adopted at national and regional level, and pursuant to these provisions the Conservation General Policy and the Hawke’s Bay Conservation Management Strategy had been adopted by the Minister. However, both the Minister and the Regional Development Company argued that decision-makers were not constrained by these documents when making

19 Ceri Warnock and Maree Baker, Focus on Resource Management Law (LexisNexis 2015) 72­–3. 20 RJ Davidson Family Trust v Marlborough District Council [2018] 3 NZLR 283. 21 Tauranga Environmental Protection Society Incorporated v Tauranga City Council [2021] NZHC 1201. 22 Hawkes Bay Regional Investment Company Limited v Royal Forest and Bird Protection Society of New Zealand Incorporated [2017] NZSC 106, [2017] 1 NZLR 1041.

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decisions under the Conservation Act. The NZSC majority rejected this argument and found that the documents played a significant role in the statutory hierarchy by informing the choices that could reasonably be made by decision-makers. Elias CJ stated:23 The policies in the planning instruments ensure consistency of decision-making while allowing adaptation to meet changing circumstances through plans developed with public participation. It would be unaccountably wasteful of the effort in adopting such planning instruments and there would be a gap in the legislation if the planning instruments it enables and recognises are irrelevant to the exercise of the significant powers conferred on the Minister to alter the classification of protected conservation land and dispose of it, including by exchange. They enable public participation provided for in the Act in actual decisions to be focused and consistent with the general policies adopted through a public process in a manner comparable to […] the familiar hierarchy set up for resource management under the Resource Management Act 1991.

In particular, the NZSC found that policies 6(c) and 6(d) in the Hawke’s Bay Conservation Management Strategy were relevant to the revocation decision and noted: ‘They are additional pointers to a statutory framework by which revocation of protected status turns on whether the intrinsic values of the protected land warrant prohibition against disposal’.24 Arguably, the question determined by the NZSC was important in terms of its potential for broader application to policies prepared under other statutes. For example, in King Salmon the NZSC found that statutory planning documents prepared under the RMA are designed to give specific effect to sustainable management in particular locations, and as a result reference back to the purpose and principles in part 2 of the RMA or higher order documents in the statutory planning hierarchy is not generally required unless the provisions in the document being applied are found to be invalid, incomplete or uncertain. Put simply, this approach gives primacy to the most relevant lower-order statutory planning document in the hierarchy. The King Salmon doctrine constrains decision-makers to a particular approach to decision-making, and the Forest and Bird decision further constrains decision-makers by reinforcing the point that relevant provisions in statutory planning documents are mandatory considerations to which decision-makers must have regard.

ibid [131]. ibid [145].

23 24

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KING SALMON AGAIN

6.

In Davidson,25 the NZCA returned to the question of whether the King Salmon doctrine applied in the context of resource consent decisions made under s 104 of the RMA. The case concerned a resource consent application to establish a new marine farm in the Marlborough Sounds and the potential adverse effects of the proposed activity on the habitat of the King Shag (Leucocarbo carunculatus), a rare and threatened seabird species endemic to New Zealand. The judgment in Davidson was the first decision to grapple with the legislative history of s 104 of the RMA in terms of the relative importance of the cross-reference to part 2 of the statute. While the NZCA acknowledged the important role played by planning documents, it noted that they ‘may not furnish a clear answer’ in all cases ‘as to whether consent should be granted or declined’.26 However, the NZCA in Davidson found that it will be unnecessary to refer back to part 2 of the RMA where27 it is clear that a plan has been prepared having regard to Part 2 and with a coherent set of policies designed to achieve clear environmental outcomes, the result of a genuine process that has regard to those policies in accordance with s 104(1) should be to implement those policies in evaluating a resource consent application. Reference to Part 2 in such a case would likely not add anything.

Accordingly, adopting an overall broad judgment approach would not be appropriate in such cases because the planning documents in the RMA hierarchy should provide a clear answer to guide how a resource consent application should be decided. Put simply, the overall broad judgment approach is a default mechanism that is only relevant in cases of policy failure.

7.

INDIGENOUS VALUES

The decision of the NZHC in Ngati Maru Trust v Ngati Whatua Orakei Whaia Maia Ltd28 concerned a preliminary question of law that arose in the context of NZEnvC appeals against the inclusion of conditions under s 108 of the RMA on the grant of resource consents to extend a breakwater and causeway, construct ship moorings and wharf access, and carry out alterations to an existing wharf structure in Auckland’s Waitemata Harbour. The conditions provided for the recognition of the iwi authorities in the Auckland region and estab-

27 28 25 26

Davidson (n 20). ibid [51]. ibid [74]. Ngati Maru Trust v Ngati Whatua Orakei Whaia Maia Ltd [2020] NZHC 2768.

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lished an engagement process to ensure that they were fully involved ‘before, during, and after completion of the construction activities’.29 Underlying the appeals was the more fundamental question about how layers of differing Maori interests in the harbour should be reconciled. Previously, in King Salmon the NZSC found that the ‘core purpose’ of promoting the sustainable management of natural and physical resources in s 5 of the RMA is supplemented by a series of ‘particular obligations’ in part 2 of the statute, including the matters in s 6 of the RMA that ‘fall naturally within the concept of sustainable management in a New Zealand context’.30 These matters include the ancestral relationship of Maori and their culture and traditions with natural and physical resources.31 Additionally, the NZSC found that the matters in s 7 of the RMA ‘tend to be … more evaluative’,32 for example, kaitiakitanga or ‘the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori’.33 The question before the NZHC in Ngati Maru Trust was whether RMA decision-makers have jurisdiction to determine the relative strengths of the iwi relationships in an area affected by a proposal (where relevant to the cultural effects of the application) when addressing these part 2 matters. In particular, Whata J noted the ‘significance’ attached to these provisions by the United Kingdom Privy Council (UKPC) decision in McGuire v Hastings District Council,34 where Lord Cooke stated that they ‘are strong directives, to be borne in mind at every stage of the planning process’.35 Whata J therefore stated:36 The RMA is replete with references to kopu Maori, including Maori, iwi, hapu, kaitiakitanga, tangata whenua, mana whenua, taonga, taiapure, mahinga mataitai and tikanga Maori. Parliament plainly anticipated that resource management decision-makers will be able to grasp these concepts and where necessary, apply them in accordance with tikanga Maori. In this regard, local authorities and the Environment Court regularly deal with these concepts and their application, and have done so for nearly 30 years. What can be seen from even a cursory review of that case law over that time span is an evolving understanding and application of matauranga Maori and tikanga Maori. While tikanga Maori is defined in the RMA as ‘customary values and practices’ it has come to be understood as a body of principles, values and law that is cognisable by the Courts.

31 32 33 34 35 36 29 30

ibid [9]. King Salmon (n 15) [26]. RMA, 6(e). King Salmon (n 15) [26]. RMA, s 7(a); s 2(1). McGuire v Hastings District Council [2002] 2 NZLR 577. ibid [21]. Ngati Maru Trust (n 28) [64].

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This analysis led Whata J to observe that there will clearly be ‘cases where different iwi or hapu may have overlapping areas of interest’, and that the RMA framework ‘necessarily demands that […] decision-makers are able to identify, involve and provide for iwi and their mana whenua in accordance with matauranga Maori’.37 While Whata J was careful to note that ‘jurisdiction to declare and affirm tikanga based rights’ is vested exclusively in the NZHC and the Maori Land Court, he found that the NZEnvC will ‘nevertheless’ be ‘engaged in a process’ of ascertaining ‘tikanga Maori where necessary and relevant to the discharge’ of the strong directives ‘asseverated’ by the UKPC in McGuire that must observed at every stage of the RMA process.38 In particular, Whata J observed:39 Where iwi claim that a particular outcome is required to meet those directions in accordance with tikanga Maori […] decision-makers must meaningfully respond to that claim. That duty to meaningfully respond must apply when different iwi make divergent tikanga-based claims as to what is required to meet those obligations. This may involve evidential findings in respect of the applicable tikanga and a choice as to which course of action best discharges the decision-makers’ statutory duties. To hold otherwise would be to emasculate those directions of their literal and normative potency insofar as concerns iwi.

However, Whata J was careful to emphasise that the dynamic process of assessing divergent tikanga-based claims made by different iwi requires that the interests of all groups should be recognised. Accordingly, Whata J held that40 the statutory obligation to recognise and provide for the relationship of Maori and their culture and traditions with their whenua and taonga, to have regard to their kaitiakitanga and to take into account the principles of the Treaty of Waitangi, does not permit indifference to the tikanga-based claims of iwi to particular resource management outcomes. On the contrary, the obligation ‘to recognise and provide for’ the relationship of Maori and their culture and traditions with their whenua and other taonga must necessarily involve seeking input from affected iwi about how their relationship, as defined by them in tikanga Maori, is affected by a resource management decision. To ignore or to refuse to adjudicate on divergent iwi claims about their relationship with an affected taonga (for example) is the antithesis of recognising and providing for them and an abdication of statutory duty.

The NZHC decision builds on the foundation of the UKPC decision in McGuire regarding the ‘strong directives’ provided by s 6(e), s 7(a) and s 8 of the RMA 39 40 37 38

ibid [66]. ibid [67]. ibid [68]. ibid [73].

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that will have a critical influence on achieving outcomes that promote sustainable management where matters pertaining to the relationship of Maori and their culture and traditions with natural and physical resources are affected in some way, and the express lexical or real meaning (kopu Maori) of the words and phrases used in the RMA that create a series of normative obligations. Effectively, these obligations are mandatory relevant considerations. Overall, the decision in Ngati Maru Trust firmly focuses on the statutory purpose of the RMA in promoting the sustainable management by enabling Maori to provide for their cultural well-being by recognising and providing for their ancestral relationships with natural and physical resources. Put simply, the decision requires that divergent tikanga-based claims should be decided in a way that best gives effect to the mandatory statutory obligations to Maori under part 2 of the RMA.

8.

ENVIRONMENTAL BOTTOM LINES

The NZHC decision in Tauranga Environmental Protection Society41 concerned an appeal under s 299 of the RMA against the decision of the NZEnvC upholding the grant resource consent for the realignment of transmission lines across Rangataua Bay in the Tauranga Harbour. The central question in the appeal was whether the NZEnvC had erred in its approach to part 2 of the RMA. To address this question, the NZHC embarked on a careful analysis of the decisions in King Salmon and Davidson42 The NZHC found that these decisions approached the interpretation of part 2 of the RMA in a consistent way. Justice Palmer stated regarding the Davidson decision:43 I do not read the Court of Appeal to be endorsing the previous approach of courts simply listing relevant considerations, including provisions of planning documents, and stating a conclusion under the rubric of an ‘overall judgment’ in relation to consent applications that do not engage the NZCPS. The Supreme Court was clear about the obvious defects of that approach. It is inconsistent with the text and purpose of the RMA, inconsistent with the need to give meaning to the text of plans as the legal instruments made under the RMA, and inconsistent with the rule of law. The Court of Appeal’s statement, that in all cases not involving the NZCPS ‘the relevant plan provisions should be considered and brought to bear on the application’ makes it clear it does not advocate for that. Rather, the Court considered there must be ‘a fair appraisal of the objectives and policies [of a plan] read as a whole’. While the Court of Appeal expanded on the use of pt 2 of the RMA,

Tauranga Environmental Protection Society (n 21). King Salmon (n 15); Davidson (n 20). 43 Tauranga Environmental Protection Society (n 21) [78]. 41 42

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I do not consider its judgment contradicted the reasoning of the Supreme Court in warning about the defects of the overall judgment approach in relation to particular consent applications.

Accordingly, the NZHC found that, consistent with the approach in King Salmon and Davidson, decision-makers will only need to refer to part 2 of the RMA ‘if careful purposive interpretation and application of the relevant policies require it’.44 However, in this case the NZEnvC did not provide a ‘careful analysis of how the relevant planning instruments should be interpreted and applied to the proposal’, and merely stated that these instruments contained ‘relevant objectives and policies to which we must have regard’.45 The NZHC observed that this approach was reminiscent of the overall broad judgment approach (criticised by the NZSC in King Salmon) and that the NZEnvC was actually required ‘to carefully interpret the meaning of the planning instruments it had identified […] and apply them to the proposal’.46 The NZEnvC had failed to do that in this case, and had therefore erred in law. Because the NZHC found that the proposed activity would have significant adverse effects on the relationship of Maori and their culture and traditions with Rangataua Bay, the ‘bottom lines’ contained in the policies in the Regional Coastal and Environment Plan (RCEP) were engaged.47 These adverse effects were to be avoid ‘where practicable’ unless there were ‘no practical alternative locations available’ where the proposed activity could be carried out.48 The decision in Tauranga Environmental Protection Society confirms that there is no substantive difference between the conclusions of the NZSC and the NZCA in King Salmon and Davidson. Both judgments require decision-makers to focus on interpreting and applying the provisions in the hierarchy of subsidiary RMA instruments to the factual matrix of the proposed activity under consideration, confirm that reference to part 2 of the RMA is unnecessary except in the limited circumstances where the planning instruments (properly interpreted and applied) do not provide an answer as to what the appropriate resource management outcome should be, and clearly articulate the problems associated with an overall broad judgment approach. Additionally, the decision confirms that the provisions in part 2 of the RMA set both environmental and cultural bottom lines. In particular, the duty to avoid adverse effects engages the prevention principle, and the options for effects to be remedied or mitigated incorporates an effects hierarchy which 46 47 48 44 45

ibid [86]. ibid [87]. ibid [87]. ibid [129]. ibid [129].

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anticipates that effects will only be remedied or mitigated in cases where avoiding adverse effects is not a practicable option.

9.

EEZ EFFECTS HIERARCHY

The NZSC decision in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board49 related to the judicial review of consents granted under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZCSA) for seabed mining of iron sands 22 km offshore in the South Taranaki Bight. The respondents were concerned about the adverse environmental effects of mining on the seabed and benthos (the flora and fauna living on the seabed), the sediment plume arising from the return of waste material to the seabed, and noise effects from mining on marine mammals. The question before the NZSC was whether the courts below were correct in quashing the decision. The debate before the NZSC focused on the interplay between the statutory purpose in s 10(1) to promote the sustainable management of natural resources generally and (in particular) to protect the environment from pollution, and the decision-making criteria in s 59(2) of the EEZCSA. Based on analysis of the statutory context of s 10(1) and s 59(2) of the EEZCSA, Ellen France J found that an ‘overall assessment’ was required.50 She considered that an overall judgment approach was consistent with the previous decision of the NZSC in King Salmon51 because the rejection of that approach in King Salmon was (in her view) based on case-specific factors and noted that subsequently in Davidson52 the NZCA had found that the limitations on using the statutory purpose in s 5 of the RMA and related provisions in part 2 of the statute to justify an overall broad judgment approach did not apply in the context of the interplay between the statutory purpose in s 5 and the decision-making criteria in s 104 of the RMA. For these reasons, while Ellen France J agreed that the statutory purpose in s 10(1) of the EEZCSA remained relevant, she did not agree that it was an operative provision that precluded an overall assessment, and stated:53 In the present case, there is a clear link between the purposes in s 10(1) and s 59. The decision-maker has to consider the criteria in s 59 with a view to ensuring that

49 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127. 50 ibid [51]. 51 King Salmon (n 15). 52 Davidson (n 20). 53 ibid [55].

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the statutory purposes in s 10(1) are met. Accordingly, the DMC, when taking into account the s 59(2) factors […] will always have to consider those aspects in terms of the purpose. Treating both of the purposes as a cross-check is a way in which that consideration may be achieved. To this extent we accept the notion that s 10(1) is the ultimate touchstone.

In contrast, Glazebrook J stated that:54 As the purpose provision, s 10 provides the basis for the purposive interpretation of other sections of the EEZ Act. It also, however, provides an overarching guiding framework for decision-making under the Act and, to this extent, has substantive or operative force. This Court took a similar view of the purpose provision in s 5 of the Resource Management Act 1991 […] in […] King Salmon […] It held that the definition of sustainable management in s 5(2) of the RMA ‘states a guiding principle which is intended to be applied by those performing functions under the RMA’.

Winkelmann CJ also agreed with this conclusion. In particular, she found that55 it is clear from the statutory scheme that s 10(1)(b) is an operative restriction for the grant of consents for discharges of harmful substances and the dumping or incineration of waste or other matter. It is also operative in the sense that this section, along with s 10(1)(a), provides the standard against which an application for consent for such activities is to be addressed.

The finding that s 10 of the EEZCSA is an operative provision led Glazebrook J to conclude that it stipulates cumulative obligations in the context of marine discharges and that creates an outcome-oriented ‘environmental bottom line’. She stated:56 Section 10(1)(b) is cumulative on s 10(1)(a). It must therefore provide for something more than sustainable management. In my view, s 10(1)(b) is an operative restriction for discharges and dumping and thus an environmental bottom line in the sense that, if the environment cannot be protected from pollution through regulation, then discharges of harmful substances or dumping must be prohibited.

Section 10(1)(b) of the EEZCSA is therefore a separate consideration that should be addressed by decision-makers as an environmental bottom line. When considering applications this requires decision-makers to assess the

Trans-Tasman Resources (n 49) [240]. ibid [303]. 56 ibid [245]. 54 55

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character, intensity, and scale of any potential environmental harm in context. This conclusion also led Winkelmann CJ to find that:57 Whether harm is material in any one case will require assessment of a multiplicity of factors, such as the volume of the harmful substance discharged into the expanse of the sea, the flora, fauna and natural characteristics of the area of seabed affected, the size of the seabed or volume of water affected, and the time for which the damage will last. There are therefore qualitative, temporal, quantitative and spatial aspects to materiality that have to be weighed.

Accordingly, the NZSC majority established the following ‘three-step test’ for deciding marine discharge and dumping applications under the EEZCSA, namely:58 (a) (b)

(c)

Is the decision-maker satisfied that there will be no material harm caused by the discharge or dumping? If yes, then step (c) must be undertaken. If not, then step (b) must be undertaken. Is the decision-maker satisfied that conditions can be imposed that mean: i. material harm will be avoided; ii. any harm will be mitigated so that harm is no longer material; or iii. any harm will be remedied within a reasonable timeframe so that, taking into account the whole period harm subsists, overall the harm is not material? If (a) or (b) is answered in the affirmative, the decision-maker should perform a balancing exercise taking into account all relevant factors under s 59, in light of s 10(1)(a), to determine whether the consent should be granted.

The three-step approach to addressing material harm arising from marine discharge or dumping activities is substantially similar to the general approach adopted in relation to addressing adverse environmental effects in the context of promoting the sustainable management of natural resources articulated via the effects management hierarchy found in cl 3.21 of the National Policy

ibid [310]. ibid [261]. (Glazebrook J with whom Winkelmann CJ and Williams J agreed).

57 58

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Statement for Freshwater Management 2020 promulgated under the RMA, which articulates: an approach to managing the adverse effects of an activity on the extent or values of a wetland or river (including cumulative effects and loss of potential value) that requires that: (a) adverse effects are avoided where practicable; and (b) where adverse effects cannot be avoided, they are minimised where practicable; and (c) where adverse effects cannot be minimised, they are remedied where practicable; and (d) where more than minor residual adverse effects cannot be avoided, minimised, or remedied, aquatic offsetting is provided where possible; and (e) if aquatic offsetting of more than minor residual adverse effects is not possible, aquatic compensation is provided; and (f) if aquatic compensation is not appropriate, the activity itself is avoided …

A similar effects management hierarchy is also proposed in cl 1.8(1) of the draft National Policy Statement for Indigenous Biodiversity which was released for consultation in November 2019. Overall, the NZSC decision in Trans-Tasman Resources is significant. First, the decision signals a significant development in how the purpose provisions in environmental statutes should be applied substantively to confer rights and impose obligations. Previously, for example, the NZSC in King Salmon held in the context of the statutory purpose of the RMA that ‘Section 5 was not intended to be an operative provision, in the sense that it is not a section under which particular planning decisions are made: rather it sets out the RMA’s overall objective’.59 Second, the decision suggests that a stepped approach may be appropriate when deciding applications under environmental law statutes generally where an assessment of any potential adverse effects is expressly or impliedly required as part of the decision-making process. Put simply, the decision indicates that the statutory purpose of environmental legislation has substantive effect, and that using an effects hierarchy is appropriate to ensure that any adverse effects are avoided, remedied or mitigated. More widely, the trajectory of the stepped approach articulated by the NZSC in Trans-Tasman Resources is consistent with the requirement to address uncertainty by applying a precautionary approach either under domestic law

King Salmon (n 15), [151].

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(for example, s 61(2) of the EEZCSA) or in accordance with Principle 15 of the Rio Declaration 1992.60

10.

CONCLUSION AND RESEARCH AGENDA

The decisions of the Senior Courts discussed above have successfully responded to the challenges of interpreting sustainable management and applying the concept in innovative ways. However, environmental litigation has likely not been the most efficient or effective way of achieving sustainable management. The random and sporadic nature of environmental litigation (absent declaratory proceedings or national direction) defines the realistic understanding of what environmental law can do in the RMA context. At the time of writing, environmental law in New Zealand is in a state of flux following the announcement by Minister for the Environment David Parker that the government intends to repeal and replace the RMA with a proposed Natural and Built Environments Bill (NBA).61 The exposure draft of the NBA was referred to the Environment Select Committee for inquiry on 29 June 2021. The Select Committee report released on 1 November 2021 confirmed the proposal to replace the sustainable management of natural and physical resources with a new statutory purpose.62 The statutory purpose included in s 5(1) of the NBA is twofold. First is to enable ‘Te Organga o te Taiao’ (the welfare and well-being of the environment) to be upheld by ‘protecting and enhancing the natural environment’.63 In particular, the welfare and well-being of the environment is defined by s 5(3) of the NBA as incorporating: (a) (b) (c) (d)

the health of the natural environment; and the intrinsic relationship between iwi and hapu and te taiao; and the interconnectedness of all parts of the natural environment; and the essential relationship between the health of the natural environment and its capacity to sustain all life.

60 Trans-Tasman Resources (n 49), [109], [110], [113] (Ellen France J, with whom the other members of the NZSC agreed). 61 David Parker, ‘RMA to Be Repealed and Replaced’ (The Beehive) www​.beehive​ .govt​.nz/​release/​rma​-be​-repealed​-and​-replaced accessed 1 June 2022. 62 Environment Committee, Inquiry on the Natural and Built Environments Bill: Parliamentary Paper (1 November 2021) 13–14. 63 NBA, s 5(1)(a).

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The second aspect of the statutory purpose is to enable ‘people and communities to use the environment in a way that supports the well-being of present generations without compromising the well-being of future generations’.64 These statutory objectives are to be achieved by ensuring that any use of the environment complies with environmental limits that will be prescribed by subsidiary planning documents promulgated under the NBA,65 by promoting a mix of ecological and anthropocentric outcomes listed in s 13A of the NBA66 and by avoiding, remedying or mitigating any adverse effects on the environment.67 Notwithstanding the political desire for reform of the New Zealand resource management system, there are some strong parallels between the existing and proposed statutory purposes in the RMA and the NBA. For example, the environmental bottom lines articulated in s 5(2)(a), (b) and (c) of the RMA (noted in section 2 of this chapter) are replicated in s 5(1)(b), s 5(2)(c) and s 5(3)(d) of the NBA. However, when compared with its RMA counterpart the statutory purpose in the NBA has a much firmer ecological focus, and arguably comes very close to ascribing legal personality to the environment as a subject whose health, welfare and well-being should be protected and enhanced. Likewise, the structure of s 5 of the NBA brings the vital role played by Maori in environmental management by virtue of their knowledge and traditional practices more sharply into focus, and arguably enhances the standing of Maori as litigation guardians on behalf of the natural environment generally. But the obligation in s 5(2)(b) of the NBA to provide for the environmental outcomes listed in s 13A of the Bill is problematic because the provision ascribes no relative priority between outcomes that are desirable to protect or restore the natural environment on the one hand, and outcomes that will provide for well-functioning urban and rural areas on the other hand. The resolution of any conflict between these competing objectives is left to be addressed either by the national planning framework that will be promulgated by the responsible minister, or by natural and built environment plans prepared by the relevant regional planning committee appointed by the local authorities in the region.68 Arguably, s 13B of the NBA is regressive and would if enacted resuscitate the North Shore overall broad judgment approach. There is currently no available detail about what appeal rights will be available under the NBA, so it is unclear whether resolving any conflict between competing

66 67 68 64 65

NBA, s 5(1)(b). NBA, s 5(2)(a). NBA, s 5(2)(b). NBA, s 5(2)(c). NBA, s 13B.

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environmental outcomes will ultimately be a matter for political judgment or for the Senior Courts as a question of law. The latter point regarding conflict resolution is important because the decisions from the Senior Courts during the period 2014–21 emphasise the influence of policy statement and plan provisions in ensuring consistent decision-making and the vital roles played by ‘the participation of all concerned citizens’69 and ‘indigenous people and their communities’70 in preparing these instruments, which are designed to achieve sustainable management and underpin the rule of law by guaranteeing effective access to environmental justice.71 Finally, commenting on the current state of flux in New Zealand environmental law, David Grinlinton has observed that ‘only time will tell if New Zealand will retain or surrender its position as an innovator and global leader in integrating sustainability into environmental law and policy’.72 Accordingly, any research agenda set for the future as we move towards the new milestones in 2030 articulated via the Sustainable Development Goals will necessarily be focused (from a New Zealand perspective) on the dynamic ecological and cultural capability of the statutory purpose in the NBA to define non-negotiable bottom lines, the continued relevance of the instrumental decisions from the Senior Courts created in the period 2014–21, and the ability of the non-regression principle to safeguard against at-large political judgments which cannot be adequately justified by reference to legally enforceable standards. Otherwise, the point made by Lord Cooke of Thorndon that ‘the enactment of a legal right is meaningless and window-dressing without a legal remedy’ may ring increasingly true.73 Arguably, the decisions from the Senior Courts discussed above contribute to the wider jurisprudence of comparative environmental law through their ambition to achieve sustainable management adopting a more ecological approach (consistent with international environmental law principles) to provide redress and remedy.

Rio Declaration 1992, Principle 10. Ibid Principle 22. 71 ‘Environmental Rule of Law’ (IUCN, 16 February 2018) www​ .iucn​ .org/​ commissions/​world​-commission​-environmental​-law/​wcel​-resources/​wcel​-important​ -documentation/​environmental​-rule​-law accessed 1 June 2022. 72 David Grinlinton, ‘Sustainability in New Zealand Environmental Law and Policy’ in Peter Salmon and David Grinlinton (eds) Environmental Law in New Zealand (2nd edn, Thomson Reuters 2018) 141. 73 Lord Cooke of Thorndon, ‘Human Rights in Hong Kong’ (1999) 29 VUWLR 45, 47. 69 70

7. In doubt when in favour of nature? Taking science seriously in the Anthropocene epoch Mariana Coelho and Patryck Ayala 1. INTRODUCTION The superposition of planetary events materialized by a pandemic (COVID-19) and the expansion of the effects of a state of emergency generated by climate change can perfectly justify acceptance of the portrait of a world in transformation, or in metamorphosis. In this interpretation of a world in transformation, the current state of scientific knowledge allows us to demonstrate an important conclusion, whose content is relevant to understand and justify how the world is interpreted, how choices are made and how decisions are taken through law. In the context of the planetary pandemic and global climate change, science demonstrates that there is a relationship of dependence between the human community and natural systems, and the disruption of certain ecological processes, or even the disrespect of some borders established in this interspecies relationship (human and non-human life), can lead to consequences that extend into the two domains, human and non-human. In terms of the relation between this reality and the law, bodies linked to the UN-affiliated bodies that monitor and implement environmental treaties and conventions have confirmed (especially in 2019 and 2020) that certain models for coping with conflicts are insufficient to prevent and contain this same reality. Faced with such a scenario it is possible to explain, through this interpretation of a world in transformation, that choices or decisions favourable to nature need to be structured and justified in the systems of rights. This chapter seeks to justify the statement that legal responses that favour the protection of nature cannot be limited as the result of a privileged and restrictive application of a so-called in dubio pro natura principle. In this sense, we argue that three distinct models justify the principle. The first stems from the use of the precautionary principle. The second is based on the literal meaning of the in dubio pro natura principle, as expressed in the Ecuadorian 104

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Constitution, which, in short, also refers to the meaning given by precaution, but advances when it also applies to interpretive doubts. Both models comprise a restrictive application of the in dubio pro natura principle, considering that its application is conditioned to a context of doubts (scientific in the case of the first and interpretative in the case of the second). Ecuadorian constitutional experience has addressed the principle in a literal sense, whereas the Supreme Court of Justice of Mexico has addressed it in the sense that legal norms must always be applied in favour of nature, as analysed in section 4 of this work. On the other hand, when proposing an autonomous meaning to justify an imperative to act in favour of nature even if there is no chance of doubt, this is considered complementary to the use of the precautionary principle. It should be noted that use of the precautionary principle as a resource to justify pro natura decisions is also linked to hypotheses of uncertainty and doubt about the harmful potential of the activity, product or technique. In the jurisprudence of Brazilian higher courts, the precautionary principle is even used as a decision model to define in dubio pro natura. Of a set of 11 decisions, one stands out, however: it is proposed that the content of the rules to be applied must be the one that best favours nature, rather than the one that favours nature but not necessarily in the best manner. Hence, the third model, defended here, is the one that describes the application of the most favourable meaning to nature, as an imperative that does not depend on states of doubt. This model is present in Brazilian and Mexican jurisprudence, through decisions of the Superior Courts, which will be analysed. Therefore, it is considered that pro natura legal responses can be better justified if a transformation and expansion of the content of this principle is considered, which should interact with the scientific conclusions of a world in transformation, by which natural systems need to be respected for all human decisions and choices. Rather than presenting a restrictive description, under the condition of a path and of an (ecological) answer, to provide a solution for doubtful states or to justify that decisions should favour nature in contexts of scientific uncertainty or deficiency about the state of available information, the better option is to explain its definition by relating it to a legal structure that should always favour responses in favour of nature, especially when presented with scenarios of approximation or disruption of the boundaries (or frontiers) of the planet. These planetary boundaries are considered in the work, under the condition of legal imperatives.

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THE ANTHROPOCENE AND EARTH SYSTEM SCIENCE: LESSONS FROM THE VIROTIC PANDEMIC

In the geological epoch understood as the Anthropocene, ecological systems have become more vulnerable. Realization of the reality of the threat of this geological period – as affirmed by Paul Crutzen1 – directly influences the ways in which one of the main legal instruments identifying that anthropocentric rationality must behave in contexts where ecological imperatives can no longer be ignored by public and private society. In his ‘risk society’, Ulrich Beck proposed interpreting a changing world by designating it as a state of metamorphosis, which would have its origins in a movement produced by the climate change event – an event that could give rise to opportunities for emancipation.2 If the world effectively stopped at first, with the execution of lockdown measures on a global scale – as Sousa Santos explained – we should be able to learn some lessons from this pause in the world.3 Among these lessons are some that are particularly relevant to this chapter: the lessons offered by the state of available scientific knowledge. Even before the pandemic, the European Union4 had already signalled that the path forward, and now the reconstruction of the world, should be based on economic relations that propose more responsible relationships with nature, helping to strengthen a pre-pandemic trend which was already getting stronger in the wake of the scientific dissemination of the fifth IPCC report: support for a green new deal, in line with what Naomi Klein maintains.5 The pandemic is an addition to a second planetary or global fear that was already under way, namely climate change. Both increase visibility of the transformations in how problems must be understood by people and institutions, and propose at least

1 Paul Crutzen, ‘Human Impact on Climate Has Made This the “Anthropocene Age”’ (2015) 22(2) New Perspectives Quarterly, 14–16. 2 Ulrich Beck, A metamorfose do mundo. Como as alterações climáticas estão transformando a sociedade (Edições 2017) 70, 150. 3 Catarina da Esperança Maquile Melo and Guirino Dinis José Nhatave, ‘SANTOS, Boaventura de Sousa. A CRUEL PEDAGOGIA DO VÍRUS. Coimbra: EDIÇÕES ALMEDINA, S.A., 2020.’ (2020) 12 Temporalidades 22–8. 4 European Commission. ‘Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions. The European Green Deal’ (2019) COM/640 https://​ec​.europa​.eu/​info/​sites/​info/​files/​european​-green​-deal​ -communication​_en​.pdf accessed 14 July 2021. 5 Naomi Klein, On Fire: The (Burning) Case for a Green New Deal (2019) https://​ public​.ebookcentral​.proquest​.com/​choice/​publicfullrecord​.aspx​?p​=​5883113 accessed 1 June 2022.

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a common learning: the lessons that can be offered and accepted from science to demonstrate the existence of a dependence relation between human actions and natural systems. Science has shown that 75 per cent of infectious diseases coming to light in the past three decades have a zoonotic origin.6 The loss of quality of natural resources has consequences for a wide range of human rights,7 and the relationship between human intervention and disruptive ecological realities with consequences of great magnitude is no longer beyond the reach of scientific cognition.8 For example, it has already been observed that the period of reduction of human action at the beginning of the pandemic allowed initial comparative details of this relationship to be empirically collected and used for choices and decision-making processes.9 Likewise, it was proposed that the reduction in deforestation could contribute to biological control, given the numbers already illustrated by the WHO, of the effects of this harmful relationship between extractive practices and nature.10 Therefore, present generations are already now as important as future generations were in the past; the latter are no longer priority beneficiaries in a useful or viable protection narrative/ argument. Corine Pelluchon warned in a recent interview that the pandemic required us to radically reflect on the human relationship to non-human life,11 It imposed a survey of existing hierarchies between the human and non-human worlds, but also emphasized the biological boundaries existing between them, warning that the instrumentalization of life is not possible without suffering the con-

6 ‘Zoonotic Disease: Emerging Public Health Threats in the Region’ (World Health Organization - Regional Office for the Eastern Mediterranean) www​.emro​.who​ .int/​fr/​about​-who/​rc61/​zoonotic​-diseases​.html accessed 1 June 2022. 7 UNGA, ‘Intensification of efforts to prevent and eliminate all forms of violence against women and girls: resolution adopted by the General Assembly’ (23 December 2020) UN Doc A/RES/75/161. 8 Nicholas A Robinson and Christian Walzer, ‘How Do We Prevent the Next Outbreak?’ (Scientific American Blog Network) https://​blogs​.scientificamerican​.com/​ observations/​how​-do​-we​-prevent​-the​-next​-outbreak/​ accessed 1 June 2022. 9 Christian Rutz and others, ‘COVID-19 Lockdown Allows Researchers to Quantify the Effects of Human Activity on Wildlife’ (2020) 4 Nature Ecology & Evolution 1156–9. 10 Jeff Tollefson, ‘Why Deforestation and Extinctions Make Pandemics More Likely’ (2020) 584 Nature 175–6, ed 16. 11 Hector Pavon, ‘Corine Pelluchon: “El coronavirus nos muestra vulnerables, pero puede traer una toma de conciencia”’ (Clarín, 24 April 2020) www​.clarin​.com/​revista​ -enie/ ​i deas/​c orine​ -pelluchon​ -coronavirus​-muestra​ -vulnerables ​-puede ​-traer​ -toma​ -conciencia​-​_0​_h5o9qiPvD​.html accessed 1 June 2022. For a full understanding of the definition of repairing the world, see Corine Pelluchon, Réparons le monde. Humains, animaux, nature (Payot & Rivage 2020).

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sequences of these actions.12 The pandemic illustrates very clearly that these hierarchical boundaries have been breached, and have had consequences too. The virus crossed interspecies borders, and in this relation man is the most fragile subject. Finally – and this is the argument relevant to the development of this section – the pandemic raised hierarchies and returned the world (repaired the world) to its previous state, demanding that nature be only nature, not an object of instrumentalization in the interest of human utilities.13 In this context, the next section will develop how a learning opportunity for law is available, through Earth System Science, in the interests of the legal protection of nature.

3.

EARTH SYSTEM SCIENCE AT THE SERVICE OF THE LEGAL PROTECTION OF NATURE

On 22 September 2020, at a public hearing convened in the context of the judgment of the Allegation of Non-compliance with Fundamental Precepts (ADPF) n. 708 in Brazil,14 Carlos Nobre presented the result of studies he carried out together with Thomas Lovejoy in 2018 and 2019.15 These studies found it was possible to demonstrate results that would already allow us to affirm the existence of a tipping point for the Amazon biome.16 These studies concluded that 20 per cent deforestation in the biome would lead to a savannization process from which there would be no possible return. This would be the point of irreversibility, after which the same level of original biological diversity could not be restored even after thousands of years. Nobre warned at the same time that a 17 per cent deforestation rate had already been reached, therefore approaching a dangerous tipping point. 17 Ibid. Ibid. 14 Supremo Tribunal Federal. ‘Audiodescrição. Audiências Públicas do STF – Fundo do Clima – 4a Parte’ (2020) www​ .youtube​ .com/​ watch​ ?v​ =​ N1HXG9l8CN4 accessed 12 July 2022. 15 Carlos Nobre and Thomas Lovejoy, ‘Amazon Tipping Point’ (2018) 4 Science Advances 1; Carlos Nobre and Thomas Lovejoy, ‘Amazon Tipping Point: last chance for action’ (2019) 5 Science Advances 1–2. 16 According to Timothy Lenton and colleagues, ‘The term “tipping point” commonly refers to a critical threshold at which a tiny perturbation can qualitatively alter the state or development of a system’: Timothy M. Lenton et al., ‘Tipping elements in the Earth's climate system’ (2008) 105 Proceedings of the National Academy of Sciences 1786. 17 Supremo Tribunal Federal. ‘Audiodescrição. Audiências Públicas do STF – Fundo do Clima – 4a Parte’ (2020) www​ .youtube​ .com/​ watch​ ?v​ =​ N1HXG9l8CN4 accessed 12 July 2022. The alert is also included in Carlos Nobre and Thomas Lovejoy, ‘Amazon Tipping Point: Last Chance for Action’ (2019) 5 Science Advances 1–2. 12 13

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This sample of scientific production, in the domain of climate science, allows us to structure the central argument in this work, to justify an ecological approach to rights: through science, it is now possible to demonstrate that there is a relationship of dependence between the human community and natural systems and ecological processes. This means that an ecological approach to rights must be understood as the legal description of the socio-ecological reality. Here, the interdependence between natural systems and the human community is a reality. Therefore, the law cannot ignore this reality in the processes of justification of rights. Science, especially climate science, asserts that natural systems should be, and must be, protected by law, towards an approach that favours decisions which support them. In this sense, what follows concerns the justification, through law, of decision models in favour of nature (pro natura decisions). To make use of the image proposed by Corine Pelluchon ­– repairing the world – it is science that, at this moment, can be useful and can be part of collaboration to repair the world. It is science that can be useful and collaborate to return nature to its place (the place of nature), and it can collaborate to justify arguments to raise socially constructed hierarchies between humans and the natural world. The notion of science for the normativity of law should serve the purpose of relating the necessity for this scenario of dependency with the necessity to understand what the legal protection of nature and earth systems actually is, and what it should be. This can only be achieved, in the first place, if law stops ignoring the laws of nature. Putting this necessity in legal terms suggests that law would need to adequately understand and reflect, in its normative process, Earth System Science, so that nature becomes a fundamental value for choices towards scenarios of inflection points. The suggestion that comes to be understood is that a law that aims to protect earth systems must be an ecological law, and in that sense must be able to understand, correctly, what nature is.18 Understanding what nature is raises the question of what one seeks to protect, and how this primary objective of legal protection can be pursued. The description of a legal proposal that takes nature seriously must be found as an integration of science to legal norms that aim to protect earth systems.19 It is argued that

18 In this same sense, says Patryck de Araújo Ayala, ‘The law needs to understand what nature is and can be. What we usually have are socially instituted norms that define what the environment is, and that do not correspond to the reality of what nature is’: Patryck de Araújo Ayala, ‘Constitucionalismo global ambiental e os direitos da natureza’. In: José Vários and Rubens Morato Leite, A Ecologização do Direito Ambiental Vigente: Rupturas Necessárias, 2a edição (Lumen Juris Direito 2020) 150. 19 Jan Laitos and Lauren Wolongevicz, ‘Why Environmental Laws Fail’ (2014) 39 William & Mary Environmental Law and Policy Review 1; Daniel Botkin, ‘Adjusting

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science must play an important role in the greening of rights, acting in and for the law – first of all in order to correctly define what nature is, and second in order to guide decision-making processes so that anthropogenic activities can respect the ecological limits of earth systems. Science is useful in law because, as Jan Laitos observes, environmental policy, and in this case environmental law, are understood from mistaken worldviews, which reveal above all that the human perception of the natural environment is fundamentally incorrect, since it is based ‘not on reality or on scientifically proven facts, but on a false assumption and unsubstantiated hope’. 20 The scope of a law that does not protect nature because it does not see nature is favoured by a scenario in which the understanding of what is meant by nature is false, unreal, supported by assumptions of what nature could be and not by scientific understandings of what nature really consists of. 21 In this sense, Jan Laitos observes a state of misunderstanding of environmental law regarding the real perception of what nature is, which is manifested by the existence of ‘faulty assumptions behind environmental rules’.22 In the Anthropocene, law needs to observe and dialogue with science to face the problems of a geological age in where man is responsible for geological transformations. The law needs to understand what nature is and can be. What we usually have are socially instituted norms that define what the environment is, and that do not correspond to the reality of what nature is. As Ugo Mattei and Fritjof Capra explain: ‘nature sustains life through a set of ecological principles that are generative and not extractive.’23 Considering that the challenges proposed for the legal regulation of nature demand that the fundamentally mistaken understandings that human beings have about ecological systems24 be removed, some false conceptions must therefore be overcome if one wishes to speak of an ecological law, or ecologically sensitized.

Law to Nature’s Discordant Harmonies’ (1996) 7 Duke Environmental Law & Policy Forum 25; James R May and Erin Daly, Global Environmental Constitutionalism (Cambridge University Press 2014) vol 5 p.25; Laura Westra, ‘The Ethics of Integrity and the Law in Global Governance’ (2016) 37 ,.’ The Ethics of Integrity and the Law in Global Governance’ (2016) 127 University of California, Davis 37. 20 Ibid 17. 21 Ibid. 22 Ibid 77. 23 Fritjof Capra, Ugo Mattei and Jeferson Luiz Camargo, A Revolução Ecojurídica: O Direito Sistêmico em Sintonia com a Natureza e a Comunidade (1a edição, Cultrix 2018) 25. 24 Ibid.

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It is through the correct perception of nature that it is possible to speak of an ecologically sensitive law,25 as there is, in this case, a correct consideration regarding the ecological concern around the problems inflicted on ecological systems by human behaviour. Science, in law, therefore, must help in the correct definition of the object of legal protection in a law that is said to be ecologized. Otherwise, science, for law, must act in such a way as to guide decision-making processes in contexts of points of no return (inflection points). Safe operating system and planetary boundaries studies demonstrate that there is a dependence between human actions and natural systems. Studies related to safe operating system aim to identify and quantify the planetary limits that must not be transgressed, in order to prevent human activities from causing unacceptable environmental changes.26 Likewise, studies of planetary boundaries indicate that there is an urgent need for a new paradigm that integrates the continued development of human societies and the maintenance of the Earth System in a resilient state.27 Johan Rockstrom, Will Steffen and others explain that the planetary boundary structure contributes to such a paradigm by providing a science-based analysis of the risk that human disturbances destabilize the Earth System on a planetary scale.28 The notion of scientific studies in environmental law is pointed out by Ingo Sarlet and Tiago Fensterseifer – specifically in relation to planetary boundaries – as a parameter for the progressivity of human laws of ecological protection in the face of the imperative force of the laws of nature in the Anthropocene. 29 Thus, the normative regulatory limits for environmental law must necessarily be linked to the limits established and determined by Earth System Science. As long as the protection of nature is based on false or illusory understandings, it will not be possible for the legal framework for dealing with ecological problems – as an anthropocentric theory, and which is based on definitions that distort the notion of ecological reality – to offer answers regarding satisfactory levels of earth systems protection. From this perspective, the commitment to a true protection of nature can be achieved not only through real confrontation 25 The notion of ecological sensitivity is used by Oren Perez, Ecological Sensitivity and Global Legal Pluralism: Rethinking the Trade and Environment Conflict (Hart Publishing 2004). 26 Johan Rockström and others, ‘A Safe Operating Space for Humanity’ (2009) 461 Nature 472. 27 Will Steffan et al., ‘Planetary Boundaries: Guiding Human Development on a Changing Planet’ (2015) Science, 347 www​ .science​ .org/​ doi/​ 10​ .1126/​ science​ .1259855 accessed 12 July 2022. 28 Ibid. 29 Ingo Wolfgang Sarlet and Tiago Fensterseifer, Direito constitucional ecológico: constituição, direitos fundamentais e proteção da natureza (Thomson Reuters Brasil 2019) 384.

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of the extent of and reasons for the environmental crisis accentuated by the Anthropocene, but also through the strengthening of the science of the earth system through law. It is through the same climate science that it allows itself to justify and explain why it is now imperative and an emergency to respect and protect more than human utilities, but natural systems themselves, moving them away from their tipping points.30 With this framework for defining and interpreting reality through climate science it is now possible to reinforce the same premise outlined in the previous section, now oriented to draw consequences from it, namely, for an ecological approach to rights: through (climate) science it is possible to demonstrate that a relationship of dependence of the human community on natural systems and ecological processes exists. It is therefore being proposed that one way of justifying the existence of an ecological approach to rights is science-based. In this line of argument, (climate) science supports that the dependence between the human community and natural systems is a reality. It is science that is collaborating with instruments to repair the world in the context of climate change and the pandemic. It is through science that paths can be found to justify returning nature to its natural place. Through it, one collaborates to raise socially constructed hierarchies between the human world and the non-human world. The pandemic has made this reality of dependence more evident and, once again, it is science that confirms this reality. The pandemic has allowed us to accelerate our understanding, through science, that there is a dependency between the human world and the non-human world. Pro natura decisions depend, above all, on ecological sensitivity in institutional structures. These structures will be able to favour the transformation of pro natura decision patterns, in addition to opportunities for ecological adjudication that are limited to solving doubtful cases, in turn anchored in a restrictive sense of an in dubio pro natura principle. The opportunity for pro natura decisions must be understood, above all, from the ecological imperatives defined by an ecologically sensitive legal order, and cannot be limited to the restrictive application of an in dubio pro natura principle.

30 Timothy M Lenton and others, ‘Tipping Elements in the Earth’s Climate System’ (2008) 105 Proceedings of the National Academy of Sciences 1786.

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THE ECOLOGICAL TURN OF RIGHTS IN THE INTERESTS OF THE EARTH SYSTEM: THE PRINCIPLES OF ECOLOGICAL INTEGRITY AND IN DUBIO PRO NATURA

Notions such as planetary boundaries31 and ecological integrity32 – legal manifestations sensitive to the protection of nature – are defined in international models such as the Sustainable Development Goals (SDGs) and the Earth Charter, and they also need to be considered as relevant goals for the domestic legal orders. In this sense, a paradigm of progress in terms of environmental rights and protection of ecological systems is clearly recognized by the SDGs approach, adopted in 2015 at the United Nations Summit on Sustainable Development, which should guide national policies and international cooperation actions.33 The sustainability discourse adopted in the SDGs assumes an integrated and systemic character not only for the protection of human rights but also for the recognition of responsibilities for protecting ecological systems, whose main objective is to promote sustainable conditions for a just life.34 A real notion of sustainability in an Anthropocene context therefore implies the observation of planetary boundaries, which in itself suggests a minimum level of environmental protection required within a broader context of long-term sustainable development.35 In a similar context, it is through the ethical commitment to a just, sustainable and peaceful world and through the consideration of the unity between human and non-human life36 that the Earth Charter – an international document arising from the consensus of a large part of global civil society37 – encompasses in its list of principles concepts such as ecological integrity, human

31 Will Steffen and others, ‘Planetary Boundaries: Guiding Human Development on a Changing Planet’ (2015) 6223 Science 347. 32 Klaus Bosselmann, ‘Losing the Forest for the Trees: Environmental Reductionism in the Law’ (2010) 2 Sustainability 2424. 33 José Vários autores Rubens Morato Leite, A Ecologização do Direito Ambiental Vigente: Rupturas Necessárias, 2a edição (1st edition, Lumen Juris Direito 2020) 117. 34 See the 17 goals listed in ‘Objetivos de Desenvolvimento Sustentável | As Nações Unidas no Brasil’ https://​brasil​.un​.org/​pt​-br/​sdgs accessed 1 June 2022. 35 Kim, Rakhyun Klaus, ‘International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’ www​ .e​ a rthsystem​ g overnance ​ . org/ ​ p ublication/ ​ i nternational ​ - environmental ​ - law ​ - in​ -the​ - anthropocene​ - towards​ - a​ - purposive​ - system​ - of​ - multilateral​ - environmental​ -agreements/​accessed 1 June 2022. 36 Klaus Bosselmann, O Princípio da Sustentabilidade – Transformando Direito e Governança (1a edição, Revista Dos Tribunais 2015) 180. 37 Ibid.

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rights and social and economic justice, setting as fundamental the objective of achieving a sustainable and peaceful society.38 There is a fundamental importance in choosing the general principles in the Earth Charter, with the Principle of Ecological Integrity being a relevant imperative for the adequate protection and restoration of the integrity of ecological systems and natural processes that sustain life (principle II, 5),39 including through the application of principles such as prevention and precaution (principle II, 6).40 In this context, prevention and precaution are situated as specific principles of conduct for the application of a general principle of protection and restoration of the integrity of ecological systems, in order to operationalize the observance of this imperative to protect and preserve nature. This same imperative to protect nature is well represented in principle, which is expressed this time in a different national legal order, namely the text of the Ecuadorian Constitution of 2008: the in dubio pro natura principle.41 Initially affirmed by article 395.4 of the current text of the Constitution of Ecuador, the in dubio pro natura principle prescribes that ‘in case of doubt about the scope of legal provisions in environmental matters, these will be applied in the most favourable sense to protection from nature’.42 One way of explaining in dubio pro natura is via the precautionary principle, owing to its content envisaging an ‘anticipatory preventive action in response to uncertainty’.43 One might say, in view of their similar content, that the in dubio pro natura principle advances matters by applying not only under scientific uncertainty, but also to interpretive doubts. In dubio pro natura can be understood in a complementary use of the precautionary principle and as the literal meaning given by the Ecuadorian Constitution, in which it can be operationalized to contexts of scientific uncertainty or contexts of uncertainty

38 According to the preamble of the Earth Charter: UNESCO, Earth Charter, https://​earthcharter​.org/​read​-the​-earth​-charter/​preamble/​ accessed 1 June 2022. 39 UNESCO, 3. 40 Ibid. 41 For a detailed analysis of the principle and its meaning in the Latin American context, see the exhaustive research in Silvia Cappelli, ‘In dubio pro natura’ (2020) 98 Revista de Direito Ambiental 197–223. 42 ‘Assamblaya Constituyente. Constitución del Ecuador’ (2008) www​.oas​.org/​ juridico/​pdfs/​mesicic4​_ecu​_const​.pdf accessed 4 September 2021. The original reads: ‘En caso de duda sobre el alcance de las disposiciones legales em materia ambiental, éstas se aplicarán en el sentido más favorable a la protección de la naturaleza.’ 43 Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (2nd edn, Oxford University Press 2020) 135 accessed 1 June 2022.

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about the assessment of facts in environmental matters (in the first), and in contexts of doubt about the application of standards (in the case of the latter). However, it does not seem possible to justify the ecological turn of ongoing rights, especially in Latin America, towards application of this restrictive sense of the principle.44 In this restrictive approach, the principle would be presented as a mere instrument for resolving environmental disputes in contexts of doubt, and only then would it be possible to favour a solution in favour of nature. It is argued that a dialogic structure that relates the non-mandatory international legal order, the national legal order and foreign jurisprudential activity with the domestic legal order would allow for justifying the emergence of an ecological law, designating it for coordination of the principles described above and the objective of respecting planetary boundaries. In this sense, the next section intends to justify that a legal imperative of in dubio pro natura can be better understood in the context of a legal structure that already places nature in a priority context, insofar as the systems of rights embrace contents and definitions limited to the science of the Earth System and respect for the limits of natural systems.

5.

IN DUBIO PRO NATURA?

The obligation (or duty) to respect the laws of nature can give rise to different degrees of identity as a Rule of Law for Nature:45 from restrictions on the use of natural resources resulting from its status as a trust, and the necessity to avoid violation of the fundamental relations or processes that sustain all forms of life, up to the recognition for nature of the same moral (and juridical) position in a community of rights. In other words, a Rule of Law for Nature can propose more moderate or stricter facets in a community of rights: from duties (of men) towards nature, to rights (at least some, and those that are directly attached to conservation and non-intervention on basic natural laws) for nature, conceiving it as the subject of these same rights. If the first approach is not unknown in most Western legal (and constitutional) systems, and is expressed in most cases through a fundamental right to the environment that imposes restrictions or constraints on economic freedoms (from which property and freedoms are the most affected values), the second approach, with a remarkably ecocentric

As discussed in section 4. Hans Christian Bugge proposes that, in the rule of law for nature, ‘important elements of rule of law are extended beyond human beings as citizens to nature and natural values’: Hans Christian Bugge, ‘Twelve fundamental challenges in environmental law’. In: C Voigt (ed), Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press 2013) 7. 44 45

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matrix, has been gaining strength especially in that movement that calls itself Latin American constitutionalism.46 For the purpose of this work, Latin American constitutional law teaches precious and recent lessons on how to deal with the protection of nature. The Ecuadorian Constitution attributes the subject condition to nature (Article 10), expressly defines rights to it (Article 71) and is the only text in the world that directly refers to a in dubio pro natura principle (Article 395.4). The Colombian Constitution does not define rights of nature, but its courts do so in successive judgments from the year 2016 until 2 September 2020, the date of the most recent decision that favours or expressly affirms the condition of subject for nature itself.47 Many criticisms can be voiced about the direction of rights of nature. In the latter judgment, two ways of understanding this path were exposed. As stated by Louis Kotzé,48 the law needs to deal with a different ethical model. If it is not simple to replace man at the centre of relationships, it is already part of a global law to accept that there is no centre in relationships. Man is part of relationships, but other values must also be part of those relationships. In this way the Ecuadorian Constitution is not exclusively about a commitment to dignity but, now, to sumak kawsay: the ‘buen vivir’. Harmony presupposes non-conflict. In harmony no one value is more important than another. Harmony assumes that all values are important. Thus, in a community of rights, the human condition and nature are increasingly close. The second way of understanding the rights of nature emphasizes that, perhaps, it is necessary to transform the law, in some very serious contexts, from massive, systematic and iterative violation of existential realities or from massive, systematic and iterative non-compliance with constitutional and conventional commitments usually associated with omission, deficiency or lack of adequate public policies.49

46 About the subject: Roberto Gargarella, ‘Explicando o constitucionalismo latino-americano (2014) 24 Max Planck Journal of European Legal History 336–8. 47 The last decision comes from the Colombian Council of State, whose decision has not yet been published, having as its object the protection of the Bay of Cartagena: El Espectador, ‘El histórico fallo para proteger la bahía de Cartagena’ (2020) www​.elespectador​.com/​noticias/​judicial/​el​-historico​-fallo​-para​-proteger​-la​-bahia​-de​ -cartagena/​accessed 4 September 2021. 48 Louis J Kotzé, Global Environmental Constitutionalism in the Anthropocene (Hart Publishing 2016). 49 Considering this second path is particularly important given that in 2019 the first report on the State of Environmental Law was published, in which it was demonstrated that the proliferation of environmental regulations, through the definition of a fundamental right to the environment, and a human right to the environment, in the Constitutions and in international instruments for the protection of human rights, has

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While the Latin American context justifies an ecologization of rights, the coexistence of life forms and non-intervention in ecological processes are exposed as challenges for the legal consideration of Western models, and as goals for the transformation of value systems protected by law. In view of the climate emergency and the challenges of the Anthropocene, the proposition of decision patterns that favour nature is, above all, an imperative of ecological justice, and can be found in other legal approaches in addition to the nature rights approach explained above. It is important to point out that the process of protecting the earth systems defended here is understood not only from a merely legal conception of the rights of nature – which form part of a moral justification of rights – but also from an approach in which standards of ecological justice can be situated in order to favour the protection of nature (pro natura decisions). A first reading of the decision pattern of a so-called in dubio pro natura principle prioritizes a choice model to remove the obstacle of doubt, in a complementary reading of the precautionary principle, as stated before. It is the state of doubt that demands a decision model, which must be a decision in favour of nature. Hence, the element of doubt brings it closer to the decision pattern adopted by the precautionary principle. In this one, scientific uncertainty (or the absence of scientific consensus) cannot justify the absence of decision. Due to the precautionary principle, decision-making processes must take into account all risks, whatever their degree of certainty.50 What is found in scientific uncertainty is usually divergence, having therefore right answers, but several right answers. And equally, in extreme situations characterized by innovation, the absence of knowledge (thus, the scientific doubt) defines that one cannot wait for the adoption of measures.51 The application of the in dubio pro natura principle from the precautionary principle has a preponderance of a procedural nature, not proposing or defining, prima facie, what measures or what extension of actions will be demanded in the face of threat and risk. However, the decision pattern of the in dubio pro natura principle can be differentiated because there is an order and a warrant for the measures to

not been enough to contain the expansion of environmental damage: United Nations Environmental Programme, ‘Environmental Rule of Law. First Global Report’ (2019) Nairobi: UNEP. 50 Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (2nd edn, Oxford University Press 2020) 135. 51 This sense is the one reproduced in principle 10 of the Rio Declaration on Environment and Development, in 1992. United Nations, ‘Rio Declaration on Environment and Development’ (1992) www​.un​.org/​en/​development/​desa/​population/​ migration/​generalassembly/​docs/​globalcompact/​A​_CONF​.151​_26​_Vol​.I​_Declaration​ .pdf accessed 12 July 2022.

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benefit and favour nature and its protection, as in the Latin American experiences. The principle cannot be understood, however, as an order of protection for nature only in doubt, or as an order for the exclusive protection of nature in superposition of other demands for justice. It must first be reiterated that ecological justice is a standard of justice that is intended to be complete and integral, because it must be able to propose responses or solutions to conflicts in order to accommodate or meet the demands of all stakeholders and beneficiaries of a community of justice: the human community, future generations and the non-human community (non-human animals and nature). Therefore, unlike the restricted application of the principle, pro natura imperatives are likely to be justified whenever compromise of the integrity of natural systems and ecological processes is at stake. Thus, the content of an in dubio pro natura principle can be better justified in the context of an ecological turn in rights, and there must be a decision in favour of nature whenever it becomes necessary to return nature to its place, of nature.52 Thus, the in dubio pro natura principle should be applicable not only in the face of scientific uncertainty but as a general interpretative mandate of environmental justice, in the sense that in any environmental conflict, the interpretation that favours the conservation of the environment must always prevail. Following the example of what was stated by the Mexican Supreme Court of Justice, the principle in dubio pro natura is applicable not only in the face of scientific uncertainty but as a general interpretative mandate of environmental justice, in the sense that in any environmental conflict the interpretation that favours conservation of the environment must always prevail.53 The meaning is therefore quite different from deciding in favour of nature only in cases of interpretive doubt, or even weighing conflicting values to decide in favour of nature. It is therefore a question of always seeking to achieve the best meaning that favours nature in all conflicts in environmental

52 In the same sense, Patryck Ayala and Mariana Coelho, ‘Na Dúvida Em Favor Da Natureza? Levar a Sério a Constituição Ecológica Na Época Do Antropoceno’ (2021) 10 Revista Brasileira de Políticas Públicas. 53 According to the positioning of the Suprema Corte de Justicia de La Nación Mexicana: ‘Suprema Corte de Justicia de la Nación. Amparo en Revisión 307/2016, Sentencia de 14 de noviembre de 2018’ (2018) www​.scjn​.gob​.mx/​sites/​default/​files/​ listas/​documento​_dos/​2018​-11/​AR​-307​-2016​-181107​.pdf accessed 10 May 2022. It is read in the original highlight, taken from the decision: ‘Esta Sala entiende el principio in dubio pro natura no sóloacotado al principio de precaución, esto es, no sólo aplicable anteincertidumbre científica, sino como mandato interpretativo generalde la justicia ambiental, en el sentido de que en cualquier conflictoambiental debe prevalecer, siempre, aquella interpretación que favorezca la conservación del medio ambiente.’

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matters.54 This same meaning is expressly accepted in Brazil by the Superior Court of Justice, having been so especially in the case of RESp n. 1,668,652/ PA and RESP n. 1,356,207/SP, when it was intended to favour the application of the environmental content of legal rules – precluding meanings that were incompatible with such a purpose – although it is not possible to affirm that it was always concretely in a context of doubt or conflict that required the use of the principiological norm as a determining instrument for the decision.55 In this context it is suggested that the assertion of an ecological approach to rights is expanding, and it is possibly one of the best opportunities to justify that there are ecological limits to natural systems that cannot be ignored by systems of rights, demanding therefore pro natura choices and decisions guided by Earth System Science. As already argued through Corine Pelluchon’s proposition, repairing the world is above all, and precisely, returning nature to its place, of nature. For this reason, decisions in favour of nature must first of all reflect real commitments of law and systems of rights to natural systems and ecological processes, assuming – as illustrated by available scientific knowledge – that the human condition necessarily depends on maintaining the integrity of those natural systems and ecological processes and that at this time it is not possible or reasonable to justify the maintenance and strengthening of legal approaches that restrict and limit the place of nature in the systems of rights.

6. CONCLUSIONS Recognizing the existence of a world in transformation, and that law is a way of interpreting this same world, also implies considering the transformations experienced by law in order to interpret and understand it. In a world that has been challenged by two simultaneous global emergencies (a viral pandemic and global climate change), science has played an important role, at least to demonstrate that there is a necessary dependence relation between human needs and natural systems. Science has demonstrated in the context of these two planetary events/emergencies that an ecological imperative is a fact and is no longer subject to uncertainty. From the perspective of demonstrating such dependence between natural systems and the human world, it allowed itself to justify the adherence to a transformation in how the law relates to natural systems. This transforming reality allowed for recognition of the expansion of 54 This second sense is developed in Maria Isabel Esteves de Alcântara and Michelle Lucas Cardoso Michelle Lucas Cardoso Balbino, ‘A ponderação como mecanismo de solução de conflitos entre princípios norteadores do Direito penal ambiental’ (2014) 4 Revista Brasileira de Políticas Públicas 256–71. 55 Ibama v R Novaes e Leal Ltda [2019] REsp 1668652/PA (STJ); Estado de São Paulo v Luiz Roberto de Sousa e Outros [2015] REsp 1356207/SP (STJ).

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a law with a commitment to nature – an ecological law – and of a system of rights that prioritized an ecological approach to rights. In this sense, consideration of Earth System Science – identified here by studies on safe operating space and planetary boundaries – can favour a legal order based on the importance of nature and recognition of the realities of ecological systems, through consideration of an ecological sensitivity in law. The approximation of law to natural systems – provided by the acceptance of relevant scientific definitions by legal systems, such as planetary boundaries, inflection point and safe operating space – allows for justification that decisions in favour of nature do not originate only in contexts of conflict or in contexts of cognitive limitations or scientific uncertainty. Instead of favouring the literal application of its meaning, and a warrant that puts in doubt whether nature should be protected, the need for a general warrant for the application of the meaning of legal norms that best favours nature is emphasized. The state of available scientific knowledge demonstrated the fragility of legal models that merely define rights, and also demonstrated the dependence on the enjoyment and exercise of human rights, natural systems and ecological processes. While it is possible (and necessary) to justify decisions in favour of nature in cases of doubt and scientific uncertainty, the moment of emergence has already arrived at which decisions in favour of nature are justified by increasing levels of science. The ecological transformation of rights systems now stems from legal formulas that increasingly embrace the ecological imperatives of the pro natura position.

8. The principle of reparation: why the polluter-pays principle does not suffice and how to rebuild the law on environmental damage Heloísa Oliveira1 1.

INTRODUCTORY REMARKS

When analyzing environmental law in action, one is forced to conclude that the prevention principle is the backbone of modern environmental law. Environmental principles hold a particularly central place in environmental law, but no other principle has given rise to as many environmental everyday administrative procedures and rules as the principle of prevention.2 While this is not a problem and is a mere reflection of the public’s claims to halt environmental degradation, it has relegated the reparation of environmental damage to the distant background in the environmental law landscape. But, because prevention can only go so far, environmental damage has built up and reparation duties have emerged in the law. Reparation duties are currently scattered throughout almost all the most relevant pieces of European environmental legislation we know today. This fragmented scenario has hidden the fact that the legal system concerning environmental damage is in fact much more complex than it might seem at an inattentive first glance. This inevitably raises a number of questions: which reparations duties exist and under which conditions are they imposed? Who are the holders of these duties? Environmental liability is grounded on the 1 This work is funded by National Funds through FCT—Fundação para a Ciência e a Tecnologia, I.P., under the scope of the projects UIDB/04310/2020 and UIDP/04310/2020. 2 Leslie-Anne Duvic-Paoli, “Principle of Prevention” in Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law, vol VI (Edward Elgar Publishing 2018) 161; Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (Cambridge University Press 2018) 199.

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polluter-pays principle, requiring reparation from the polluter who caused the damage, and this has been studied as the backbone of environmental damage remedy. But does the law create reparation duties exclusively under an environmental liability scheme and grounded on the polluter-pays principle? As we will demonstrate, the answer to this second question is a clear no. This raises a final question, which we will answer later in the chapter: can we make sense of it all through a new environmental principle devoted specifically to the reparation of environmental damage? What we propose is a comprehensive look at environmental law through the lens of environmental reparation duties, allowing us to unveil its structure, its cross-cutting nature, and how the polluter-pays principle is actually just one legal tool among many that address environmental damage.

2.

THE DUTY TO REPAIR IN ENVIRONMENTAL LAW

2.1 Overview Environmental liability first gained momentum in the European Union (“EU”) with the approval of the Environmental Liability Directive (“ELD”).3 The 1993 European Commission Green Paper on Remedying Environmental Damage was very much centered on a traditional civil liability scheme.4 By contrast, the 2000 White Paper on Environmental Liability presents an integrated environmental liability scheme, linking environmental restoration to key EU environmental principles,5 with particular emphasis on the polluter-pays principle. The Commission’s proposal resulted in the approval of a legal solution that, in 3 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56. 4 And problems discussed under it were typical civil liability problems: Banny Poostchi, “Follow-up to the 1993 Green Paper on Environmental Liability” (1996) 5 Review of European Community & International Environmental Law 328; Robert Holmes, “A Review of Responses to the EC Green Paper on Remedying Environmental Damage Current International Developments” (1994) 7 Environmental Claims Journal 135. 5 Although specialized legal literature maintained its focus on an analysis through the lens of civil liability: Lucas Bergkamp, “The Commission’s White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime” (2000) 9 European Environmental Law Review 105; Lucas Bergkamp, “The Commission’s White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime” (2000) 9 European Environmental Law Review 141; Mark L Wilde, “The EC Commission’s White Paper on Environmental Liability: Issues and Implications” (2001) 13 Journal of Environmental Law 21; Barbara Pozzo, “Towards Civil Liability

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one crucial aspect, is closer to the United States of America’s Comprehensive Environmental Response, Compensation, and Liability Act of 1980, than to traditional civil liability: it adopts an administrative approach,6 bringing the ELD into the realm of administrative law, where it sits alongside many other EU legal instruments that attribute national administrations the power to impose environmental restoration duties on operators. 2.2

The Duty to Repair in the ELD

The ELD establishes the first comprehensive European framework on liability with regard to the prevention and remedying of environmental damage. It is not limited to certain types of economic activity: despite having stricter rules for particularly harmful activities (Annex III), the subjective scope of the ELD includes any occupational activity (art. 2-7). The Court of Justice of the European Union (“CJEU”) has decided that the concept of occupational activity is opposed to that of purely personal or domestic activities.7 Therefore, the subjective scope is very broad.8 The ELD presents a concept of environmental damage9 that is focused on harmful consequences to environmental balance (species and natural habitats, water, and land). This is a significant shift from most rules on environmental damage, especially international ones, that usually focus on specific sources of damage (such as oil spills, trade of protected species, or landfills) and encompass both damage to the environment per se and economic and non-economic

for Environmental Damage in Europe: The White Paper of the Commission of the European Communities” (2001) 1 Global Jurist Topics 1. 6 Gerd Winter and others, “Weighing up the EC Environmental Liability Directive” (2008) 20 Journal of Environmental Law 163, 163–5; Edward HP Brans, “Fundamentals of Liability for Environmental Harm under the ELD” in Lucas Bergkamp and Barbara Goldsmith (eds), The EU Environmental Liability Directive: A Commentary (Oxford University Press 2013) 37–8; Bernard Dubuisson and Christophe Thiebaut, “La Responsabilité Environnementale. Entre Responsabilité Civile et Mesures de Police Administrative” in CEDRE (ed), La responsabilité environnementale. Transposition de la Directive 2004/35 et implications en droit interne (Anthemis 2009) 138–48; Alejandro Lago Candeira, “Administrative Approach to Liability” in Akiho Shibata (ed), International Liability Regime for Biodiversity Damage: The Nagoya–Kuala Lumpur Supplementary Protocol (Routledge 2014) 96–9. 7 See Case C-297/19 Naturschutzbund Deutschland—Landesverband Schleswig -Holstein eV v Kreis Nordfriesland [2020], OJ C230/ 21, paras 67–77. 8 Lucas Bergkamp and Anke van Bergeijk, “Scope of the ELD Regime” in Lucas Bergkamp and Barbara Goldsmith (eds), The EU Environmental Liability Directive: A Commentary (Oxford University Press 2013) 51–5. 9 Bergkamp and van Bergeijk (n 8) 57–62.

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loss and damage.10 The concept of environmental damage (art. 2-1) is an essential part of the ELD since it is a condition for liability. But it is also essential for understanding liability instruments since the concept of environmental damage refers to the same environmental criteria that were already established in previous regulation dedicated to the prevention of environmental harm. For example, damage has an adverse effect on reaching or maintaining favorable conservation status, which is a basic concept in the Habitats Directive,11 and also has an adverse effect on the ecological, chemical or quantitative statues or ecological potential of water, as defined in the Water Framework Directive.12 This allows us to adaptatively resort to previous work on these concepts in the interpretation of the ELD, and to match the preventive regulation to the liability consequences in case of environmental damage. This includes the CJEU case-law on significant effects on species and habitats13 and on the deterioration of the status of a body of surface water.14 More relevantly, this allows for a certain degree of unification and coherence in environmental law, whether when preventing damage or when remedying it.15 Another key feature of the ELD is the fact that it encompasses generic rules on preventive and remedying procedures.16 Notably, the ELD defines specific rules on the definition of the remedial measures: these measures are to be decided by the competent authority (public administration), considering the nature, extent, and gravity of the damage, the possibility of natural recovery, and the risk to human health. Notwithstanding this broad discretion, Annex II provides for a framework to be followed in order to assess the damage

10 Marie-Louise Larsson, “Legal Definitions of the Environment and of Environmental Damage” (1999) 38 Scandinavian Studies in Law 155. 11 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 12 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L327/1. 13 For example, the Judgement on Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] I-07405. 14 For example, the judgment on Case C-461/13 Bund für Umwelt und Naturschutz Deutschland eV v. Bundesrepublik Deutschland [2015]. 15 Malte Petersen, “The Environmental Liability Directive—Extending Nature Protection in Europe” (2009) 11 Environmental Law Review 5, 13–16; Henrik Josefsson, “The Environmental Liability Directive, the Water Framework Directive and the Definition of ‘Water Damage’” (2018) 20 Environmental Law Review 151. 16 Brans (n 6) 39–42; Lucas Bergkamp and Christelle Van Wesembeeck, “Procedures under Member State Law Implementing the ELD” in Lucas Bergkamp and Barbara Goldsmith (eds), The EU Environmental Liability Directive: A Commentary (Oxford University Press 2013) 160.

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and choose the most appropriate restorative measures,17 classifying remedial measures (primary, complementary, and compensatory), the purpose of the measures, methods (such as resource-to-resource and service-to-service equivalence, and valuation techniques), and criteria for the decision by the competent authority (the effect on public health, the cost, the likelihood of success, and so on). Possibly due to all these elements, virtually all European scholarship concerning environmental damage has been focused on the ELD.18 However, it should be noted that the ELD is not a set of general rules on environmental damage. Despite the apparent breadth of its scope, it has many limitations that prevent it from claiming the status of a truly comprehensive regime on this topic, particularly when one considers some specific features of environmental damage. The ELD is admittedly grounded on the polluter-pays principle19 and is built on civil liability mechanisms. This means that only environmental damage that has an established source and an identified polluter is encompassed by the ELD.20 This excludes nearly all damages that result from diffuse pollution. Because of this, it is only natural that the duty to repair is not retroactive (art. 17)—although it may be retrospective21—and depends on some level of demonstration of certain conditions, such as a causal link between a fact and a specific damage (art. 4-5). Therefore, the ELD is not capable of providing a legal framework to damage resulting from some environmental problems, such as diffuse pollution, historical contaminations, and cumulative damages, that only become known years after the originating facts.22 Moreover, the 17 Edward HP Brans, “Liability for Damage to Public Natural Resources under the 2004 EC Environmental Liability Directive—Standing and Assessment” (2005) 7 Environmental Law Review 90, 100–5; Gary Bigham and others, “The Remediation Regimes” in Lucas Bergkamp and Barbara Goldsmith (eds), The EU Environmental Liability Directive: A Commentary (Oxford University Press 2013) 95. 18 Even legal literature on environmental damage in general addresses the ELD almost exclusively: Sandra Cassotta, Environmental Damage and Liability Problems in a Multilevel Context (Kluwer Law International 2012) 3. 19 Article 1 defines the subject matter of the ELD and grounds it on the polluter-pays principle. 20 As recognized in Recital 13 of the ELD. 21 Joined Cases C-379/08 and C-380/08 Raffinerie Mediterranee (ERG) SpA and Others v Ministero dello Sviluppo economico and Others and ENI SpA v Ministero Ambiente e Tutela del Territorio e del Mare and Others [2010] ECR I-08007, paras 30–40. Valerie Fogleman, “The Temporal Provisions of the Environmental Liability Directive: The Start Date, Direct Effect and Retrospectivity” (2014) 4 Environmental Liability 137, 144–55. 22 Donato Vozza, “Historical Pollution and Long-Term Liability. A Global Challenge Needing an International Approach?” in Francesco Centonze and Stefano

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broad scope of some exceptions should be highlighted, such as the exception for all activities regarding national defense or international security.23 Some other limits to the scope of the ELD are relevant: air damage is excluded due to the diffuse nature of atmospheric pollution24 and the restrictive concept of land damage does not ensure the reparation of an environmental damage proprio sensu, since it only addresses significant risks to human health25 through soil quality degradation (art. 2-1c); even remedial measures and criteria are prescribed with much less detail in what concerns soil pollution when compared to species, habitats, or water damage. Also, both for water and soil damage, only some specific sources of environmental damages are considered. The ELD is focused on contamination, setting aside all other sources of environmental damages that result from sources of pollution that are currently of extreme concern, such as land runoff (damage to the water) or compaction, infertility, loss, and erosion (land damage). Lastly, even when all conditions are met and none of the exceptions are applicable, an operator may still not be required to bear the costs resulting from remedying of environmental damage due to the admissibility of permit and state-of-the-art defenses (art. 8-4) which, depending on national legislation, allow the operator not to bear the cost of remedial actions in some cases. These defenses weaken the relevance of strict liability rules for activities that are particularly harmful and leave unregulated cases in terms of environmental recovery.26 In conclusion, notwithstanding the groundbreaking nature of the ELD in terms of environmental reparation, it does not provide an integrated response to the high levels of environmental degradation in Europe. The ELD refers only to some types of environmental damages that are caused unlawfully by a specific operator and that occur in certain conditions. This conclusion becomes clear when analyzing the low number of cases under the ELD that have been reported by Member States.27 This means that a comprehensive understanding of the law on environmental damage requires going far beyond the ELD. Manacorda (eds), Historical Pollution: Comparative Legal Responses to Environmental Crimes (Springer International Publishing 2017) 443. 23 Lucas Bergkamp and Anke van Bergeijk, “Exceptions and Defences” in Lucas Bergkamp and Barbara Goldsmith (eds), The EU Environmental Liability Directive: A Commentary (Oxford University Press 2013) 81. 24 Bergkamp and van Bergeijk (n 8) 58. 25 Brans (n 16) 95. 26 Bergkamp and Van Bergeijk (n 23). 27 Reports issued by the Commission and by Member-States concerning the implementation of the ELD can be found at https://​ec​.europa​.eu/​environment/​legal/​liability/​ index​.htm​#report2014.

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Duties to Repair: Beyond the Civil Liability Paradigm

We may consider the ELD an essential landmark in environmental law, but other duties to repair environmental damages were created in Europe in four types of cases. Environmental duties of the operator: remedying environmental damage Operators of ecologically dangerous activities are subject to environmental regulation before, during, and after the development of their activity. Even if complying with emission limit values and other preventive measures, these activities continuously release pollutants and may create environmental damage—either as a result of accumulation through long periods of activity, or due to small incidents. This is why the Industrial Emissions Directive28 requires that Member States take measures to ensure that before closing operations an environmental assessment is conducted, and that remedial measures are adopted in order to remove pollution from soil or groundwater. The operator must submit a baseline report on the state of soil or groundwater contamination; upon definite cessation of the activities, the operator must again assess the state of soil or groundwater contamination and take measures to return the site to the baseline state.29 The Directive does not prescribe any other conditions, criteria, or procedures for complying with this duty to repair. Notably, no mention is found of any of the concepts typical of civil liability, such as strict liability, fault, causal link, or defenses. In fact, this duty to repair is similar to and intertwined with typical environmental administrative duties of an economic operator whose activity is environmentally dangerous. The duty to repair under the Industrial Emissions Directive is also a result of the polluter-pays principle; but this duty to repair is also clearly associated with the general assumption that an economic operator has the duty to bear the consequences of developing an activity that creates risks and damages to the environment, just like he has the duty to bear the costs of preventive measures. This becomes clear when we consider that state-of-the-art and administrative defenses play no part here. Unlike strict liability in the ELD, these duties are entirely independent from fault, since complying with environmental duties and best practices do not preclude the duty to repair. Therefore, the duty to repair in the Industrial Emissions 2.3.1

28 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) [2004] OJ L334/17. 29 Article 22 of the Industrial Emissions Directive.

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Directive is grounded on the environmental duties of the operator of certain activities resulting from the creation of environmental risk. 2.3.2

Environmental duties of the operator: compensating environmental damage Studying environmental law through the lens of the duty to repair also allows us to identify environmental damage-remedying provisions in legal instruments that are usually exclusively analyzed from the prevention perspective. The Environmental Impact Assessment Directive30 prescribes that Member States’ development consent to certain projects can only be given following an administrative procedure that assesses the environmental impact of the project; if allowed, the decision to grant development consent must include, among others, the measures envisaged to offset significant adverse effects on the environment (art. 8 and 8a). Similarly, the Habitats Directive31 determines that if, despite a negative assessment, a project is carried out for imperative reasons of overriding public interest, the Member State must take necessary compensatory measures to ensure that the overall coherence of Natura 2000 is protected (art. 6). As described by the European Commission, compensatory measures are intended to offset the negative effects of a project that are ascertained despite all other measures taken to avoid these effects.32 There is therefore no substantive difference between the offset measures and compensatory measures, and they both constitute a form of ex ante remedying environmental harm (that is, before the damage occurs).33 Considering the object of environmental law and due to the relative fungibility in the interdependence between natural elements, remedying environmental damage may occur via compensation, and not just by remedial action applied directly to the damaged natural resource. This is the reason why the ELD recognizes the difference between remediation of damages to natural resources and its services and why complementary remediation allows reparation through measures adopted in an alternative

30 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2012] OJ L26/1. 31 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 32 Commission notice Managing Natura 2000 sites. The provisions of Article 6 of the “Habitats” Directive 92/43/EEC C(2018)7621, 60. 33 Gilles J Martin, “Fonctions Du Droit et Mesures de Compensation” in Harold Levrel and others (eds), Restaurer la nature pour atténuer les impacts du développement. Analyse des mesures compensatoires pour la biodiversité (Éditions Quae 2015) 19–20.

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site.34 Compensatory measures are recognized as a form of repairing environmental damage, as long as the offset effect is specific (that is, using equivalent approaches that compensate the specific environmental damage that is created, and refusing generic measures of overall contribution to environmental balance). Generic compensation allows reparation through a fungible contribution to the improvement of the environment, resulting in biodiversity markets35 which have been so far set aside by the European Commission.36 The duty to bear the costs of offsetting or compensating environmental damage can still be grounded on the polluter-pays principle. However, such a set of rules is very different from the ELD paradigm: the actions performed are lawful, the creation of damage is authorized, and the duties emerge before the damage has occurred. Like the Industrial Emissions Directive, the duty is created within the context of an ongoing administrative procedure and integrated within the environmental duties of the operator. 2.3.3 Environmental duties of the State Member States’ duty to repair environmental damage is present in almost all EU environmental law acts. The Habitats Directive, for example, imposes on Member States a duty to adopt measures for the restoration of sites that have been designated as special areas of conservation (art. 4-4). Recently, the Commission’s Proposal for a Nature Restauration Law37 has highlighted these duties; if approved, the law will reinforce the restorative dimension of the law on biodiversity. Similarly, the Water Framework Directive38 determines that Member States shall restore all bodies of surface water and groundwater with the aim of achieving good water status (art. 4-1). Regarding soil, the European

Annex II, 1.1, of the ELD. Valérie Boisvert, “La Compensation Écologique: Marché Ou Marchandage?” (2015) XXIX Revue Internationale de Droit Economique; Charles Hubert Born, Le Diable Dans Les Détails: Les Défis de La Régulation Des Marchés d’unités de Biodiversité: L’Exemple Du Conservation Banking Dans Le Cadre de l’endangered Species Act (États-Unis), vol XXIX (2015) 183; Carla Amado Gomes and Luís Batista, “A Biodiversidade à Mercê Dos Mercados? Reflexões Sobre Compensação Ecológica e Mercados de Biodiversidade,” Textos dispersos de Direito do Ambiente Vol. IV (AAFDL 2014) 315. 36 Commission, “Managing Natura 2000 site. The provisions of Article 6 of the “Habitats” Directive 92/43/EEC” (Notice) COM (2018) 7621 final 73–74. 37 Commission, “Proposal for a Regulation of the European Parliament and of the Council on nature restoration” COM (2022) 304 final. 38 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L327/1. 34 35

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Commission’s Proposal for a Directive on Soil Protection39 imposed a duty to draw up a National Remediation Strategy on Member States, including remediation targets, prioritization, a timetable for implementation, and funds allocated for this purpose. We can therefore conclude that EU law has imposed on States cross-cutting duties to repair environmental damage, even though it does not explicitly assume the link between the environmental damage regime and these legal sets. The object of this duty is not specified: it may include past and new damages, damages whose origins are or are not unknown, damages with specific or diffuse sources. However, considering the existing mechanisms based on the polluter-pays principle, it is expected that in practice these duties refer essentially to two types of environmental damage: historical damages—which are not covered by the ELD—and structurally diffuse-source damages—in which no polluter can be considered liable. In any case, it is evident that the ground for these duties is not the polluter-pays principle; the duties are grounded directly on States’ generic duty concerning environmental protection. Understanding the basis for environmental duties is key to providing environmental law internal coherence, since it has become clear that the polluter-pays principle can only go so far, and can only sustain part of the legal system on environmental damage. 2.3.4 Environmental duties of the owner Remedying duties on private persons under EU law are all linked to a specific pollutant activity and an identified (proven or presumed) polluter. However, domestic law may also unveil a fourth type of duty to repair: the one imposed on the owner of contaminated soil.40 In the 1980s, the United States of America was a battlefield for litigation concerning soil decontamination duties under the Comprehensive Environmental Response, Cleanup and Liability Act, also known as CERCLA or Superfund. The cause for most of this litigation was essentially one question: who is liable for cleanup costs and in what proportions? CERCLA imposed liability retroactively—for acts committed before its approval in 1980—on past and future owners, including the successor of the polluter, parent corporations,

39 Proposal for a Directive of the European Parliament and of the Council establishing a framework for the protection of soil and amending Directive 2004/35/EC, presented by the Commission Notice COM (2006) 232 final. 40 Nicolas de Sadeleer, “Preliminary Reference on Environmental Liability and the Polluter Pays Principle: Case C-534/13, Fipa” (2015) 24 Review of European, Comparative & International Environmental Law 232, 236–7.

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lenders, and corporate officers.41 Constitutional claims before courts were dismissed, and retroactivity was upheld as part of a rational way of achieving a legitimate purpose.42 The question we must ask in this context is: what is the ground for a legal framework that imposes remedying duties on persons who demonstrably did not give cause to the contamination? CERCLA is an extreme example of a legal solution that can also be found in some EU countries that imposed a duty to repair on owners as part of their general environmental duties. Not surprisingly, private owners of contaminated land have tried to deem these duties a violation of EU law based on the polluter-pays principle, laid down in the Treaty on the Functioning of the European Union (“TFEU”) and in the ELD. In the Fipa Case the ECJ decided that the polluter-pays principle and the ELD did not preclude national legislation from more stringent measures,43 including the identification of additional responsible parties. Furthermore, the Italian law44 under which the administrative authorities may require the owner of the land (who is not responsible for the pollution) to reimburse the costs relating to the measures undertaken by the competent authority45 is not incompatible with EU law. However, it is also clear from the ECJ case-law that, although enjoying a high margin of discretion in defining when and how a causal link is considered as demonstrated in cases of diffuse pollution, the ELD and the polluter-pays principle do not allow automatic assumptions of liability without some demonstration of causality.46 It is recognized by the ELD that not all environmental damage may be addressed via liability schemes;47 and the ECJ case-law has been constant in affirming that the ELD cannot serve as grounds to limit more stringent national measures that create other legal solutions for remedying environmental damage.48 In conclusion, the EU law does not determine an environmental

41 Kyle E McSlarrow, David E Jones and Eric J Murdock, “A Decade of Superfund Litigation: CERCLA Case Law from 1981–1991” (1991) 21 Environmental Law Reporter News & Analysis 10367. 42 Joel Surber, “Back on Track: The Reversal of United States v. Olin and the Continuation of Retroactive Interpretation of CERCLA” (1996) 20 Environs: Environmental Law and Policy Journal 24. 43 A conclusion in environmental matters already drawn by the ECJ in Case C-6/03 Deponiezweckverband Eiterköpfe v Land Rheinland-Pfalz [2005] I-02753, para 64. 44 A similar solution can be found in Section 78 F (4) of the United Kingdoms Environmental Protection Act of 1990. 45 Case C-534/13 Ministero dell’Ambiente e della Tutela del Territorio e del Mare e o. contra Fipa Group Srl e o. [2015], paras 54–63. 46 de Sadeleer (n 39) 235. 47 Recital 13. 48 Joined Cases C-379/08 and C-380/08 (n 22), paras 52–70.

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duty to repair borne by the owners, but it does not preclude it. This can shift the discussion toward the constitutionality of such measures. The German Constitutional Court tackled this problem in 2000 when the constitutionality of national law49 was questioned for imposing on the owner of the land (who did not give cause to pollution) the duty to repair environmental damage when it was not possible to do so on the polluter. The Court concluded that private property was ensured by the Constitution to protect the personal freedom of the holder of the right, but also to protect the common good. By refusing a property system in which the individual interest has unconditional priority over interests of the community, the Constitution gives the legislator the power to define the content and limits of the legal positions protected by private property and balance this fundamental right with the common good (that is, environmental quality) within the framework provided by the principles of proportionality and equality.50 In both these cases, the legislative power created a legal solution to regulate cases on which the polluter-pays principle could not play a role, because it was not possible to identify a liable polluter. These States have carved out similar paths and come to similar conclusions: when an environmental contamination jeopardizes environmental quality and health, it is incumbent on the owner to remove the source of danger. Duties to repair may also be grounded on the fact that the owner has environmental duties that include not only preventing environmental damage, but also remedying when a certain threshold is surpassed. 2.4

The Insufficiency of the Polluter-pays Principle

With regard to environmental damage, we believe that too much has been required from the polluter-pays principle.51 This principle was first proposed by the Organization for Economic Cooperation and Development (“OECD”) in 197252 with the purpose of internalizing pollution as a negative externality. Not requiring the polluters to bear the costs of their operations would lead to environmental damage, which, in turn, would lead to States paying 49 The Federal Soil Protection Act (Gesetz zum Schutz vor schädlichen Bodenveränderungen und zur Sanierung von Altlasten of March 17, 1998). 50 BVerfG, Order of the First Senate of February 16, 2000, on Cases BvR 242/91 and 315/99. 51 Priscilla Schwartz, “The Polluter-Pays Principle” in Ludwig Krämer and Emanuela Orlando (eds), Principles of Environmental Law, vol VI (Edward Elgar Publishing 2018) 260; Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press 2002) 21–60. 52 Recommendation of the Council on Guiding principles concerning international economic aspects of environmental policies (OECD/LEGAL/0102, adopted on May 26, 1972).

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for the cleanup and distortions in international trade and investment. The polluter-pays principle was immediately adopted by the EU in the Programme of Action (ECSC, Euratom, EEC) on the Environment (1973–6) and gave rise to a Council Recommendation regarding cost allocation and action by public authorities on environmental matters.53 Therefore, in its origins, the polluter-pays principle was not related to environmental liability; and, although a crucial tool in this area today, it has a limited role in relation to environmental damage. The connection between them is striking. However, there is no necessary link between the duty to repair environmental damage and this principle. However helpful and effective it might be, the very origins of the polluter-pays principle (within the OECD, grounded on competition and free trade) demonstrate the inherent link between the principle and a liberal economic model. It would probably not suit the needs, for example, of an economic model that prefers a public-driven economy over private initiative, or general public ownership over private property. In contrast, the duty to repair environmental damage may arise in any economic model where the environment and fundamental rights are legally protected. As demonstrated in the analysis of these different legal sets, duties to repair have different conditions of applicability, operate through administrative procedures with different rules, and have different grounds. The polluter-pays principle, although a cornerstone of EU law and the ELD, is not a sufficient lens for the analysis of environmental damage and the duty to repair. The focus on this principle seems to be the reason why the legal scholarship on this duty is so partial, and the legal rules so scattered.

3.

TYING UP LOOSE ENDS: THE PRINCIPLE OF REPARATION

The duties to repair resulting from the laws that we have analyzed have a broad common background: the multiple environmental duties that are today imposed on States and on private persons. This led us to question the existence of a principle of reparation as a generic norm imposing a prima facie duty to ensure remedy of environmental damage.

53 Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March 1975 regarding cost allocation and action by public authorities on environmental matters [1975] L194/1.

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3.1

Theoretical Basis

Legal systems contain two sets of norms: those that are expressly enacted by a public authority (such as those enshrined in laws), and those that can logically be deduced or induced from the first.54 If the analysis of the legal rules on environmental remedying allowed us to conclude that in all the cases in which environmental damage occurs the law imposed a duty to repair, we could extract a principle of reparation through inductive reasoning.55 This is not the case—many types of environmental damage are not covered by any specific duty to repair on either States or private persons. Deductive reasoning, on the other hand, can be made by an inference of a norm from a broader norm enacted by public powers when the former can be logically extracted from the latter.56 The EU legal system does not allow the deduction of such principle of reparation since (i) it does not include a fundamental right to the environment;57 therefore, (ii) all generic norms included in primary law refer to action by the EU (art. 191 TFEU), which include domestic action only when Member States are implementing EU law. Moreover, such an extraction would also seem incoherent with the principle of subsidiarity that determines that action by the EU must be deemed as necessary in casu,58 which is incompatible with this exercise of logical deduction. A multilevel analysis of environmental law leads us to the conclusion that only human rights law, at an international level, and constitutional fundamental rights, at a domestic level, may be useful for the task of deducing a principle of reparation of environmental damage from a broader norm. Such is the theoretical basis of the deductive reasoning experience that will now follow. Taking into account that a fundamental rights analysis would depend on the national system at hand, we will focus now on human rights

54 Eugenio Bulygin and Daniel Mendonca, Normas y Sistemas Normativos (Marcial Pons, Ediciones Jurídicas y Sociales 2005) 67–9. 55 Carlos Alchourrón and Eugenio Bulygin, Sistemas Normativos: Introducción a La Metodología de Las Ciencias Jurídicas (2a edição, Editorial Astrea 2012) 124. 56 Bulygin and Mendonca (n 53) 69. 57 Article 37 of the European Union Charter of Fundamental Rights only lays down EU law principles already provided for in primary law (principle of high level of environmental protection; principle of integration of policies; and principle of sustainable development). 58 Robert Schütze, “EU Competences: Existence and Exercise” in Anthony Arnull and Damian Chalmers (eds), The Oxford Handbook of European Union Law (Oxford University Press 2015) 90.

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law.59 However, it should be noted that out of 27 EU Member States, only 660 have not attributed some form of constitutional protection to the environment, either by a fundamental right to environment or by imposing on the State a generic duty to protect the environment. Based on these provisions and on constitutional rights theory on States’ duties to respect and protect61— particularly developed by German scholarship and the Constitutional Court’s case-law62—a similar reasoning may be applied to fundamental rights. In fact, even when a Constitution does not enshrine a fundamental right to environment, it may impose on the State a duty to protect the environment. This is the case for the German Constitution (art. 20a63) and the German Constitutional Court has already resorted to weighing the State’s duty of protection of fundamental rights—particularly life and health—against the risks posed by environmental problems.64 3.2

Human Rights Law

There are only two express treaty provisions recognizing a human right to a healthy environment: the African Charter on Human and People’s Rights65 and the American Convention on Human Rights.66 However, a universal consensus has been formed around the environmental dimensions of human 59 However, it should be noted that soft law instruments cannot be considered as a basis for this exercise since deducting reasoning requires an original legally binding norm. 60 Austria, Cyprus, Denmark, Ireland, Italy, Malta. 61 David Bilchitz, Poverty and Fundamental Rights. The Justification and Enforcement of Socio-Economic Rights (Oxford University Press 2007) 89–91. 62 Christian Bumke and HC Andreas Voßkuhle, German Constitutional Law: Introduction, Cases, and Principles (Oxford University Press 2019) 73–81. 63 “Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” On the duties to respect and protect arising from article 20a of the German Constitution, Winfried Kluth and Ulrich Smeddinck (eds), Umweltrecht (Springer 2013) 19–22. 64 BVerfG, Order of the First Senate of March 24, 2021, on Cases BvR 2656/18, 78/20, 96/20, and 288/20. 65 Article 24 reads as follows: “All peoples shall have the right to a general satisfactory environment favourable to their development.” The African Commission on Human and People’s Rights has so far decided one case based on this provision: Social and Economic Rights Action Center (SERAC) e Center for Economic and Social Rights (CESR) v Nigeria (2001), Case 155/96, also known as the Oganiland Case. 66 Since 1998, with the San Salvador Protocol (Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights). Article 11 prescribes: “1. Everyone shall have the right to live in a healthy environment

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rights and the fact that complying with human rights requires that States fulfill certain environmental duties.67 The question we will be addressing is if these duties encompass remedying environmental damage. Globally, in 2021 the Human Rights Council recognized a human right to a safe, clean, healthy, and sustainable environment in the context of the promotion and protection of all human rights.68 The Council also recognized that environmental damage has negative implications for the effective enjoyment of all human rights. This resolution was adopted with 43 in favor, 0 against, and 4 abstentions, which demonstrates a worldwide consensus on the topic. International environmental case-law based on the protection and promotion of human rights can only be found at a regional level. The European Court of Human Rights has notoriously issued abundant case-law on this topic,69 extracting duties concerning environmental quality from several human rights enshrined in the European Convention of Human Rights. Cases concerning environmental damage, however, have not specified States’ duties on remedying.70 Building on these cases, in 2012 the Council of Europe issued a Manual on Human Rights and the Environment, codifying a set of principles that can be extracted from human rights and their dependence on environmental conditions. A duty to adopt legislative and administrative measures ensuring the effective protection of these rights against menaces is now consensual and at the core of human rights law at the European level; one of the sources of such menaces is environmental degradation, which must be not only prevented, but sometimes also remedied. An opinion issued by the American Court of Human Rights specifically addresses the remedying of environmental damage, declaring that even when all preventive measures have been adopted States have a duty to mitigate sig-

and to have access to basic public services. 2. The States Parties shall promote the protection, preservation, and improvement of the environment.” 67 JG Merrills, “Environmental Protection and Human Rights: Conceptual Aspects” in Alan Boyle and Michael R Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press 1996) 25. 68 Resolution 48/13 (A/HRC/48/L.23/Rev.1), adopted on October 8, 2021. 69 Malgosia Fitzmaurice, “The European Convention on Human Rights and the Human Right to a Clean Environment” in Malgosia Fitzmaurice (ed), Contemporary Issues in International Environmental Law (Edward Elgar Publishing 2009) 170–206. 70 A detailed description of one of these cases, with background information on other case-law, can be found in Malgosia Fitzmaurice, “The European Court of Human Rights, Environmental Damage and the Applicability of Article 8 of the European Convention on Human Rights and Fundamental Freedoms” (2011) 13 Environmental Law Review 107.

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nificant environmental damage, which encompasses cleanup and restorative measures, including when the source of the damage is unknown.71 Treaty bodies have also provided interpretation of the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights.72 In the General Comment concerning the right to life,73 the Human Rights Committee declared that degradation of the environment is a threat to the enjoyment of the right to life with dignity and that States’ obligations include the creation and maintenance of a safe and enabling environment. The Economic, Social and Cultural Rights Committee has also issued General Comments on the rights to the highest attainable standard of health,74 to adequate food,75 and to adequate housing76 that address environmental damage. The Committee has declared that States have a duty to reduce people’s exposure to degraded environmental conditions within its tripartite division of State’s obligation in duty to respect, protect, and promote human rights, which in some cases implies a duty to directly ensure environmental conditions for the enjoyment of human rights.77 As a summary of these and many other acts by treaty bodies and international courts interpreting human rights treaties, in 2018 the United Nations Special Rapporteur on Human Rights and the Environment issued a set of Framework Principles on Human Rights and the Environment. In Commentary 5 on Principles 1 and 2, it is declared that “[w]hile it may not always be possible to prevent all environmental harm that interferes with the full enjoyment of human rights, States should undertake due diligence to prevent such harm and reduce it to the extent possible, and provide for remedies for any remaining harm.” 71 Opinión consultiva OC-23/17, of November 15, 2017, at the request of Colombia. The Court fully maintained these conclusions in Case Indigenous Communities of the Lhaka Honhat (Our Land) Association v Argentina, Judgement of February 6th, 2020. 72 The legal nature of the General Commentaries is not clear. However, they are clearly relevant for the early stages of formation of customary rules: Kerstin Mechlem, “Treaty Bodies and the Interpretation of Human Rights” (2009) 42 Vanderbilt Journal of Transnational Law 905, 919–22; 926–30. Most States have adopted the interpretation provided for in these Comments and use it for national reporting on human rights compliance. 73 General comment no 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life (CCPR/C/GC/36), paras 26, 53 and 62. 74 General Comment no 14: the right to the highest attainable standard of health (art. 12) (E/C.12/2000/4). 75 General Comment no 12: The right to adequate food (E/C.12/1999/5). 76 General Comment no 4: The right to adequate housing (E/1992/23). 77 General comment no 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (E/C.12/GC/24).

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A clear conclusion arises: under international law, not only is the environment protected directly per se, but States’ duties under human rights law imply both a duty to prevent environmental harm and a duty to ensure remedy of environmental damage that impedes the effective enjoyment of human rights.

4. CONCLUSIONS As demonstrated, treaty bodies and international courts have consistently been deducing environmental duties from human rights law, with a focus on prevention and remedy of damages to these rights. These same duties are present at a national level, where constitutional law prescribes fundamental rights and environmental protection. What we argue is that these duties also include a duty to ensure that environmental damage is repaired. This generic duty78—to ensure environmental remedying (a generic action, that must be specified) under any circumstances in which environmental damage is impairing the enjoyment of human rights or fundamental rights—is what we propose as a principle of reparation. This principle may also result from constitutional duties to protect the environment per se, thus encompassing situations in which the connection to human beings is not so clear (such as damages to species and habitats). Ensuring environmental remedy means that States have a duty to create legal rules to address serious environmental damage; when they do not, States must ensure remedy directly. Environmental liability rules are surely one way of complying with this duty, by making the polluter pay. However, as we have noted, conditions for the applicability of liability norms, the protection of legal certainty and fundamental rights and the mere fact that some damages are structurally and fully diffuse in nature create orphan damages. In these cases, States must comply with their duties concerning environmental damage either by creating different grounds for the duty to repair—similar to legal solutions discussed in 2.3.4, which are based on the environmental duties of the owner—or by assuming reparation as a public duty—similar to legal solutions discussed in 2.3.3, based on the environmental duties of the States. Environmental damage-remedying demands relevant resource allocation, since it is very costly. Like all matters of human rights and fundamental rights, this means that States can only fulfill this duty according to the resources that are available for the satisfaction of multiple rights and public interests. This limitation, however, is not specific to environmental duties and is one of the reasons why fundamental rights are considered principles: they can

78 Pedro Moniz Lopes, “The Syntax of Principles: Genericity as a Logical Distinction between Rules and Principles” (2017) 30 Ratio Juris 471.

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be optimized, weighted, and fulfilled gradationally.79 This does not limit the positive effects that the recognition of a principle of reparation would entail for environmental law as a legal field. The future of environmental law as a legal field capable of finding solutions for difficult and new cases depends on the creation of strong doctrinal frameworks that are both structured and flexible. We believe that in relation to environmental damage, this means recognizing the existence of a generic norm that provides a legal basis for difficult cases that have not been specifically addressed by legal norms—that is, situations outside the scope of the ELD or other laws—determining that States have a duty to find solutions when an operator cannot be held liable or when no polluter can be identified, and regulating cases within State jurisdiction when State liability for transboundary harm is not applicable. Moreover, like all environmental law principles, a principle of reparation would provide guidance in interpretation, systematizing the law on environmental damage, conferring unity, and identifying gaps and incoherencies.80 As such, the principle of reparation is a pathway to rebuilding the law on environmental damage.

79 Robert Alexy, Theory of Constitutional Rights (Oxford University Press 2010) 44; Robert Alexy, “On the Structure of Legal Principles” (2000) 13 Ratio Juris 294. 80 These are common functions of environmental principles: de Sadeleer (n 50) 263; Eloise Scotford, Environmental Principles and the Evolution of Environmental Law (Hart Publishing 2017) 27.

PART III

Energy

9. Renewables under the scrutiny of international investment law: the feed-in tariff Monika Feigerlová1 1. INTRODUCTION A number of countries have pledged to achieve net-zero greenhouse gas emissions over the coming decades.2 In the energy sector this goal will require, on the one hand, the adoption of government policies to eliminate the use of fossil fuels, and, on the other hand, attracting private capital into new infrastructure, energy efficiency and renewable energy sources.3 According to a special report by the International Energy Agency,4 by 2050 almost 90 per cent of electricity generation will come from renewable sources, with wind and photovoltaics together accounting for almost 70 per cent. Promotion of renewable energy has been one of the main trends in the energy sector in the past two decades. Despite states’ efforts, changes to renewable energy policies have been challenged on the basis of the rules of international investment law. Foreign investors filed claims for damages against several countries, in particular some EU Member States. The Czech Republic had to defend seven disputes over its imposition of a solar levy and 1 The research for this article has been supported/subsidized through the Lumina quaeruntur award of the Czech Academy of Sciences for the project ‘Climate law’ conducted at the Institute of State and Law. 2 In addition to the EU, 110 other countries signed up to achieve carbon neutrality by 2050 and China by 2060. United Nations, ‘The Race to Zero Emissions, and Why the World Depends on It’ (2 December 2020) https://​news​.un​.org/​en/​story/​2020/​12/​ 1078612 accessed 1 April 2022. 3 For example, EU Member States have agreed on a binding target of at least 32 per cent share of renewable energy sources in the EU’s energy mix by 2030. The target is to be further increased to reach the newly set goal of 55 per cent EU greenhouse gas emissions reductions by 2030. 4 International Energy Agency, Special Report Net Zero by 2050: A Roadmap for the Global Energy Sector (IEA, Flagship report, May 2021) 19.

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a de facto alteration to the support scheme for photovoltaic power plants. Six of the proceedings were terminated by 2019 and non-unanimously decided in its favour.5 The partial outcome of the last claim6 has recently been reviewed by the Swiss Supreme Court, which ruled against the Czech state in terms of liability, while the quantum is yet to be determined.7 Clean energy regulatory measures that governments will need to introduce to meet their international climate change commitments will inevitably interact with the investment law regime and generate investment disputes. Where a state provides express or implied assurances to an investor or a category of investors, the state’s failure to honour that undertaking may constitute a breach of fair and equitable treatment and entail liability for compensation under international law, with the key contentious issue being changes to the feed-in tariff. This contribution focuses on this, and is divided into three main sections. After this introduction, section 2 introduces the feed-in tariff and the subsequent need to impose a solar levy. Section 3 addresses the intersection of Czech solar energy policy with international investment law and the decisions of the arbitral tribunals regarding the Czech reduction of the renewable energy support scheme. Section 4 identifies options for reforming the investment regime. The chapter concludes with a reflection on the Czech experience of the feed-in tariff and its impact on the development of the Czech solar energy market.

2.

THE FEED-IN TARIFF

Investments in the renewable energy (‘RE’) sector require higher initial capital costs with a longer payback period than conventional fuel cycle investments.8 5 Antaris Solar GmbH and Dr. Michael Göde v Czech Republic (Award, 2 May 2018) UNCITRAL; WA Investments-Europa Nova Limited v Czech Republic (Award, 15 May 2019) UNCITRAL; I.C.W. Europe Investments Limited v Czech Republic (Award, 15 May 2019) UNCITRAL; Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen, JSW Solar (zwei) GmbH & Co.KG v Czech Republic (Award, 19 October 2017) UNCITRAL; Photovoltaik Knopf Betriebs v Czech Republic (Award, 15 May 2019) UNCITRAL; and Voltaic Network GmbH v Czech Republic (Award, 15 May 2019) UNCITRAL. All investors, save for Wirtgen, asked for consolidation of the cases into single proceedings. As the Czech Republic rejected it, the arbitration continued before six different tribunals with partial overlaps between arbitrators. 6 Natland Investment Group N.V., Natland Group Limited, G.I.H.G. Limited, Radiance Energy Holding S.à.r.l. v Czech Republic (PCA Case No. 2013-35) UNCITRAL. 7 Czech Republic v Natland et al, Swiss Federal Tribunal (Decision 4A_80/2018), 7 February 2020 4 para B.c. 8 EU Commission, Communication from the Commission: Energy for the Future: Renewable Sources of Energy (White Paper for a Community Strategy and Action Plan. COM(97)599 final 1997) 6.

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The development and operation of certain renewable energy sources has often been difficult where public support is lacking.9 Many states introduced legislative frameworks and provided financial incentives to RE operators, including for photovoltaic power plants. One such support mechanism was a feed-in tariff, by which the state guaranteed fixed prices for electricity purchases from RE sources over a specified period of time. The Czech introduction of the feed-in tariff for solar electricity producers, and the uncontrollable boom in solar power plants that subsequently led to the freeze of the sector, is a salutary case. 2.1

The Czech Solar Energy Support

In connection with its accession to the European Union in 2004 and its commitments under the Kyoto Protocol,10 the Czech Republic reinforced its existing RE framework.11 In line with the EU’s aim to establish a suitable and stable legal framework for renewable energies,12 it set a mandatory target of a 13 per cent share of energy from renewable sources in overall gross energy consumption by 2020 for the Czech Republic in 2009.13 Based on the above documents, the Czech Republic amended its laws and introduced feed-in tariffs for producers generating electricity from renewable sources. The Act on Support was enacted in March 2005 to promote the use

9 Current trends show that technological progress related to RE technologies has been achieved and certain renewables can now provide electricity competitively compared to fossil fuel-fired power generation. See International Renewable Energy Agency, Renewable Power Generation Costs in 2019 (IRENA, 2020). 10 Based on Annex II of the Treaty of Accession, Directive EC (2001/77) on the promotion of electricity produced from renewable energy sources in the internal electricity market was amended to set an indicative national target for the contribution of electricity produced from RE resources for the Czech Republic at the level of at least 8 per cent by 2010. Under the Kyoto Protocol, the Czech Republic undertook to reduce greenhouse gas emissions in aggregate by 8 per cent by 2012 compared to the year 1990. 11 Since 1993 two tax incentives were already available: a six-year income tax vacation for RE producers and accelerated depreciation periods of five to ten years for certain categories of electrical equipment and components used in photovoltaic installations. 12 European Parliament, Resolution on Electricity from renewable energy sources and the internal electricity market (SEC(1999) 470 – C5-0342/1999 – 2000/2002(COS), 2000) para 3. 13 Directive (EC) 2009/28 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/ EC, [2009], OJ L140, 16–62.

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of RE ‘in the interest of protection of the climate and environment’.14 It stipulated that RE producers would be connected to the grid on a preferential basis, solar-generated electricity would be sold by RE producers directly to electrical grid operators at fixed prices applying the feed-in tariff and grid operators would be obliged to purchase all electricity with no cap on the volume that was generated from RE sources. Producers would have a guaranteed period of 15 years for a return on their investment through the feed-in tariffs on condition that certain technical and economic parameters were met.15 The feed-in tariffs were mostly granted to producers as a fixed price per unit of electricity.16 The adequate return on invested capital during the total life of the installation was determined by the weighted average cost of capital. Based on the Energy Office methodology, it was established at the rate of 7 per cent per year. The original expected lifetime of the installations was increased from 15 to 20 years in 2007. Section 6(2)(b)(2) of the Act on Support also stated that the amount of revenues per unit of electricity from RE sources with the support of the feed-in-tariffs should be ‘maintained as the minimum’ for a period of 15 years from the year of putting the installation into operation while taking the price index of industrial products into account.17 The interpretation of this provision was at the heart of the disputes after the Czech state scaled back the feed-in tariff. As of 2007, the Act guaranteed that the feed-in tariff was not to be lower than 95 per cent of the value of the feed-in tariff applicable to the electricity generated by the plants connected in the previous year. This 5 per cent brake rule prevented the Energy Office from making rapid changes in the tariff for new installations.

14 Act 180/2005 Coll., on Support of the Production of Electricity from Renewable Sources and Amendment to Other Acts. 15 Decree 475/2005 Coll., on Implementation of Certain Provisions of the Act on Support provided technical details. 16 Green bonuses (premiums on top of market price) were less frequent. 17 The rate of the feed-in tariff was to be set by the Energy Office annually for the installations connected in the following year while taking different installation and operation costs of each type of RE source into account.

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145

De Facto Modification of the Feed-in Tariff by Imposition of a Solar Levy

After the adoption of the Act on Support, the solar energy sector did not progress substantially,18 as the country is not particularly rich in sunshine19 and the costs of photovoltaic panels were high. The situation changed in 2009 and 2010, when the price of solar panels dropped by more than 40 per cent.20 In response to the ‘solar boom’, public representatives announced that the support policy was no longer fulfilling its primary function and indicated a need to reduce the existing support. As a result of these signals, producers hurried to have photovoltaic installations in place by the end of 2010 under the then existing feed-in tariffs. The government’s warnings unintentionally produced an undesirable exponential growth of installations in 2010 and uncontrollable financial pressure on their support, fully borne by electricity consumers. With delays partly caused by political crisis21 the first amending law was passed in spring 2010 and abolished the 5 per cent brake rule that enabled the Energy Office to reduce the feed-in tariffs faster for new plants.22 The measure did not stabilize the scheme and the electricity grid, and further amendments followed in November 2010, limiting new support to small power plants with an installed capacity below 30kWh23 and abolishing income tax exemption and favourable depreciation arrangements for all RE producers.24 Although the latter measure was to apply prospectively, the abolition terminated the six-year tax vacation enjoyed by some producers. The changes were still insufficient to address the oversaturation of the market and steep increase in electricity prices for final consumers, who were already suffering from the global economic crisis.25 The state therefore decided to impose a levy on revenues from solar electricity generated in the period from 1 January 2011 to 31 December

18 Czech Energy Office, Yearly Report on the Operation of the Czech Electricity Grid for 2012 (Statistics Unit ERO, 2013). 19 Karel Janda, Štěpán Krška and Jan Průša, ‘Česká fotovoltaická energie: modelový odhad nákladů na její podporu (Czech Photovoltaic Energy: Model Estimation of The Costs of its Support)’ Politická ekonomie (2014) vol. 3, 325. 20 Explanatory report to Draft Act 137/2010 Coll. (16 November 2009) 1. 21 The Czech Republic had a caretaker government between May 2009 and July 2010. 22 Act 137/2010 Coll. amending the Act on Support. 23 Act 330/2010 Coll. amending the Act on Support effective as of 1 March 2011. 24 Act 346/2010 Coll., amending the Income Tax Act effective as of 1 January 2011. 25 The increase in electricity prices was estimated at 12.7 per cent for households and at 18.4 per cent for industrial consumers. Explanatory report to Draft Act 137/2010 Coll. (16 November 2009) 1.

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2013 by solar power plants put into operation between 1 January 2009 and 31 December 2010.26 Producers connected in these critical years obtained significantly higher profits from the feed-in tariffs compared to producers of electricity from other renewables and producers from previous years. Consequently, photovoltaic installations that were commissioned before 31 December 2008 and after 1 January 2011 were free from the solar levy. The solar levy was originally set at 26 per cent as regards operators entitled to the feed-in tariff. It was essentially a specific income tax imposed on revenues from solar electricity generation. Although the solar levy was imposed on solar energy producers, the grid operators were the payers. They withheld the relevant amount of the levy and paid the guaranteed feed-in tariff to the producers after the deduction.27 The tariff rate remained formally unaffected. The amendment also limited the amount of support charged to final consumers and the state budget now participated in financing the feed-in tariffs.28 Legislative changes continued after 2013 with limited or no funding for new installations and the solar levy was extended beyond the initial three-year period.29 This chapter focuses on the solar levy, which attracted the attention of international law; further developments in the sector are outside the scope of this contribution.

3.

INTERSECTION WITH INTERNATIONAL INVESTMENT LAW

The feed-in tariff is a domestic measure under state authorities’ review. Nevertheless, it can also be subject to scrutiny by international economic law, including international treaties for protecting foreign investments.30 Czech lawyers’ and commentators’ opinions on the solar levy were not unanimous. Some academics and professionals considered the imposition of the solar levy problematic due to its selective nature and potential retroactivity.31 By contrast, domestic courts and tax authorities rejected the RE 26 Act 402/2010 Coll. amending the Act on Support. The amendment was hastily enacted; the bill was approved on 14 December 2010, published in the Collection of Laws on 28 December 2010 and took effect on 1 January 2011. 27 Section 7b of the Act on Support effective as of 1 January 2011. 28 The limit was set at CZK 370/MWh. 29 The solar levy at a reduced rate of 10 per cent applied to installations connected in 2010 for the entire time of the support. 30 International trade law and EU law may be also relevant as regards barriers to trade, and unlawful state aid. 31 See for example Hana Skalická ‘Problematické aspekty solárního odvodu (Problematic Aspects of Solar Levy)’ (2017) Daně a právo v praxi, vol. 22, no. 4, 24–31. See also Tomáš Mach ‘Legitimate Expectations as Part of the FET Standard:

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producers’ claims. The Czech Constitutional Court held the solar levy and the cancellation of tax exemptions to be constitutional.32 However, it recognized that the legislative changes could harm operators in individual cases and violate the constitutionally guaranteed right to own property,33 taking into account the specific economic conditions of an affected solar energy producer and the abrupt impact of the solar levy. Producers that could demonstrate that the measures had a ‘strangling effect’ on their businesses or directly harmed their assets had a right to seek judicial redress. Despite this Constitutional Court’s ruling, ordinary courts were unable to establish a corresponding remedy within the Czech legal system and the RE producers’ claims were dismissed on procedural grounds.34 The Constitutional Court admitted indirect retroactivity in the introduction of the solar levy but held that it was justifiable given the specific economic situation in the Czech Republic and the fact that the guaranteed 15-year period for return on investment was not fundamentally jeopardized by the adoption of the relevant amendments.35 The Court underlined that the principle of legal certainty cannot be considered absolute, since legal regulations are subject to social and economic changes and demands on the stability of the state budget.36 The levy was a legitimate response to the change in market conditions. Foreign investors holding investments in the Czech photovoltaic plants had another avenue for bringing claims before international ad hoc arbitral tribunals on the basis of international investment treaties (‘IIAs’). These treaties provide investors with certain substantive standards of protection (such as

Quo Vadis, Legitimate Expectations in the Light of the JSW Solar v. Czech Republic and Novenergia v. Spain Cases?’ (2019) ACTA UNIVERSITATIS CAROLINAE – IURIDICA 2, 71–89; Ondřej Lichnovský ‘Ústavní aspekty odvodů ze solární elektřiny (Constitutional Aspects of Levy on Solar Electricity)’ (2011) Právní rozhledy, vol. 5, 163. Karel Šimka, Lenka Kaniová ‘“Rdousící efekt” solárního odvodu v  judikatuře vysokých soudů (The ‘Strangling Effect’ of the Solar Levy in Case Law of High Courts)’ (2015) Bulletin of the Chamber of Tax Advisors of the Czech Republic, vol. 2, 29–35. 32 Constitutional Complaint, Czech Constitutional Court, 3 May 2012, ruling Pl. ÚS 17/11, para 88. 33 The constitutional complaint asserted that the Act on Support provided to its addresses assurances that they could legitimately expect to acquire property in the form of revenues from energy production. 34 E.g. Decision of the Grand Chamber of the Supreme Administrative Court 1 Asf 76/2013, 17 December 2013; Decision of the Supreme Administrative Court 1 Asf 121/2014-52, 17 December 2014, and Decision of the Constitutional Court II. ÚS 2216/14, 13 January 2015. 35 Constitutional Complaint (note 33) paras 68–69. The Constitutional Court left unclear whether the level of revenues per unit of electricity was also preserved. 36 Ibid, para 85.

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fair and equitable treatment, full protection and security or protection against expropriation and unreasonable and discriminatory measures), and allow them to bring claims for breach of the IIA directly against the state to international arbitration. The Czech Republic has a vast network of IIAs37 and many solar power plants were owned by foreign investors, especially from Germany.38 In 2013 seven arbitration proceedings were initiated under intra-EU bilateral investment treaties39 and the Energy Charter Treaty (‘ECT’). The Czech Republic made it clear it would not pursue a potential lack of jurisdiction of a tribunal established under an intra-EU bilateral investment treaty (later conclusively decided in the Achmea ruling)40 as a defence from the beginning of the arbitration proceedings.41 The arbitral tribunals subsequently considered the Czech state to have waived such objection once the Achmea ruling was rendered.42 The European Commission sought to intervene as a non-disputing party but refused to pay reasonable costs, and either the jurisdictional objections in its amicus curiae briefs remained unaddressed43 or unsupported by the Czech Republic44 or the parties decided to move the seat of arbitration to a non-EU country (for example, from Paris to Geneva).45 The investors challenged the 26 per cent solar levy, the repeal of the income tax exemption and changes in the tax depreciation rules, and the resulting det37 It is bound by approximately 70 bilateral investment agreements, some of which are being terminated. Ministry of Finance of the Czech Republic www​.mfcr​.cz/​cs/​ legislativa/​dohody​-o​-podpore​-a​-ochrane​-investic/​prehled​-platnych​-dohod​-o​-podpore​-a​ -ochra accessed 1 April 2022. 38 In some cases the ultimate owners were Czech citizens; however, they were given the ECT’s protection. See for example WA Investments Award, para 274. 39 The following IIAs were invoked in the cases listed in note 6 depending on the nationality of the foreign investor: Agreement between the Czech and Slovak Federal Republic and the Federal Republic of Germany for the Promotion and Reciprocal Protection of Investments [1990]; Agreement between the Czech Republic and Cyprus for the Promotion and Reciprocal Protection of Investments [2001]; Agreement between the Czech and Slovak Federal Republic and the United Kingdom of Great Britain and Northern Ireland for the Promotion and Reciprocal Protection of Investments [1990]; Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic [1991]; and Belgium-Luxembourg Economic Union–Czech Republic Agreement [1989]. 40 Case C-284/16 Slowakische Republik v Achmea BV Judgment of EU:C:2018:158. 41 Antaris Award, para 30. 42 I.C.W. Europe Award, para 407; Photovoltaic Knopf Award, para 348; WA Investments Award, para 449; and Voltaic Network Award, para 359. 43 Antaris Award, paras 36–42; I.C.W. Europe Award, para 42. 44 JSW Solar Award, para 249. 45 Paras 24–26 of awards in I.C.W. Europe, Photovoltaic Knopf, WA Investments and Voltaic Network.

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rimental impact on their investments of reducing the incentives.46 They alleged that the Czech Republic thereby breached the standard of fair and equitable treatment, prohibition of unreasonable and arbitrary measures,47 the umbrella clause,48 the obligation to provide a stable and predictable legal framework, investors’ legitimate expectations and full protection and security.49 The amount of all pending claims was estimated at EUR 790 million.50 The success rate of the Czech state was high. Six proceedings ended in favour of the Czech Republic, with the latest awards rendered in 2019.51 In the pending Natland case, a Partial Award was issued on 20 December 2017 (publicly unavailable) that was subject to a judicial review before the Swiss Supreme Court. The court’s ruling indicates that the Czech state was found liable for breach of fair and equitable treatment; damages are still to be determined.52 The arbitral awards so far available found that rolling back the incentives and the solar levy did not contravene the relevant investment treaty rules. In the tribunals’ assessment, the statutory guaranteed a 15-year return of investments in solar power plants with a reasonable profit was maintained despite the introduction of the solar levy and other alterations to the support scheme. As the decisions were not reached unanimously, the following text will analyse the parameters of the feed-in tariff suitable for creating a stability commitment and the basis for the investors’ legitimate expectations, and investor’s behaviour and the circumstances under which reducing the feed-in tariffs might breach the state’s obligations under the IIAs.53

46 The ECT was invoked in all cases in parallel with a relevant bilateral investment treaty, save for JSW Solar, where only the Czech–German treaty was applied. The claimants had to rely on treaties other than the ECT for challenging tax measures. 47 See for example Antaris Award, para 74. 48 See for example JSW Solar Award, para 452. 49 See for example JSW Solar Award, para 447. 50 Ministry of Finance ‘Press release’ (18 October 2017) www​.mfcr​.cz/​en/​news/​ press​-releases/​2017/​czech​-republic​-won​-in​-breakthrough​-solar​-29866 accessed 1 April 2022. 51 See arbitral awards cited in note 6. 52 Czech Republic v Natland et al, Swiss Federal Tribunal (Decision 4A_80/2018), 7 February 2020. 53 Dissenting opinions expressing disagreement with the decision by the majority on the liability of the Czech state were issued in two cases (Antaris and JSW Solar). It is probable that in the remaining cases dissenting opinions would have been issued had not Gary Born, the author of the dissenting opinions, resigned from other tribunals (WA Investments Europa Nova; I.C.W. Europe Investments; Photovoltaic Knopf Betriebs; and Voltaic Network).

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Solar Levy as a ‘Disguised’ Taxation Measure under the Energy Charter Treaty

When reducing the support scheme for RE sources, the Czech government was mindful of the risk of investor lawsuits.54 It decided to implement the solar levy over a certain category of RE producers as an additional tax on their revenues instead of directly changing the feed-in tariffs.55 The ECT excludes claims related to a Taxation Measure from its application56 and the levy would therefore have a better prospect of escaping the tribunal’s jurisdiction under the ECT.57 The tribunals rejected the characterization of the solar levy as a tax in the sense of Article 21 of the ECT. They agreed that the clause must be interpreted in accordance with international law; however, they arrived at divergent conclusions on the nature of the solar levy under Czech law as the domestic law to which Article 21 of the ECT refers. Most tribunals concurred with a decision of the Czech Supreme Administrative Court58 under which the solar levy did not constitute a tax under Czech law, due to its lack of non-equivalence.59 ICJ Judge Tomka, a co-arbitrator in the Antaris case, disagreed, however, and in his separate opinion60 he emphasized contradictory Czech case law that indicated the levy was indeed a tax under domestic law.61 In other cases the tribunals (composed of the same arbitrators) ruled that the Czech Republic failed to bear its burden of proof of establishing that the solar levy may be characterized as a ‘provision relating to taxes of the domestic law’ under the ECT.62

54 The Czech Republic has been a frequent respondent to investment claims since the collapse of the communist regime (ranked among top five of the most sued countries in the world in the last 20 years). UNCTAD, Factsheet on Investor-State Dispute Settlement Cases in 2018 (IIA Issues Note, May 2019) 2. 55 Official representatives were outspoken as regards ‘finding a formally correct mechanism for reduction of the support from solar power plants, such that it cannot be legally contested’. See Antaris Award, para 153. 56 Article 21(1) in connection with Article 21(7) of ECT. 57 Anataris Award, paras 252–3. 58 Decision of the Czech Supreme Administrative Court 9 Afs 13/2013-53, 10 July 2014. 59 The non-equivalence means subjecting an entity by the state to a tax without any performance from the state at the time of taxation. Antaris Award, paras 235–6; I.C.W. Europe Award, para 301. 60 Declaration of Judge Tomka regarding Antaris Award (undated). 61 Czech Constitutional Court, Judgment ref. no. 11 ÚS 2216/4, 13 January 2015; Supreme Administrative Court, decision ref. no. 6 Afs 14/2015-36, 25 March 2015. 62 I.C.W. Europe Award, para 306; Photovoltaic Knopf Award, para 239; Voltaic Network Award, para 259; WA Investments Award, para 326.

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In any event, Article 21 of the ECT imposes international limits on measures that can be invoked by states as excluded taxation measures.63 In the tribunals’ view, the Czech Republic did not act in bad faith when attempting to structure as a tax the measure that would lead to the feed-in-tariff being reduced,64 but, ‘in view of that aim, the measure could not escape the legal scrutiny’ of the ECT tribunal.65 3.2

Breach of Fair and Equitable Treatment and Legitimate Expectations of the Investors

Protecting the legitimate expectations of the investor, as a central element66 of the fair and equitable treatment (‘FET’) standard, plays a main role in deciding cases regarding feed-in tariffs. It must be assessed whether and to what extent the feed-in tariff and the underlying legislative framework can create legitimate expectations in RE producers and whether the subsequent changes to the incentive regime can constitute a breach of the investment treaty’s67 or the ECT’s68 guarantee of the FET standard. The tribunals referred to the present state of arbitral practice in the interpretation and application of the FET standard. The Antaris award summarized the FET breach as a state’s conduct involving (a) actions or omissions that violate the investor’s legitimate and reasonable expectations relied upon by the investor to make the investment, or (b) conduct that is not transparent or consistent and creates an unstable or unpredictable legal framework or business environment for the investment.69 The FET does not affect the state’s right to exercise sovereign authority to legislate and to adapt its legal system to chang63 I.C.W. Europe Award, paras 310–13; Photovoltaic Knopf Award, para 252; WA Investments Award, para 329; and Voltaic Network Award, para 263. 64 Antaris Award, para 253; I.C.W. Europe Award, para 320; Photovoltaic Knopf Award, para 261; WA Investments Award, para 339; and Voltaic Network Award, para 272. 65 Declaration of Judge Tomka in relation to Antaris Award (undated), para 12. 66 Rudolf Dolzer, Christoph Schreuer, Principles of International Investment Law (2nd edition, Oxford University Press, 2012) 133. Other elements include transparency, stability and procedural propriety and due process. 67 The most frequently invoked German–Czech investment treaty provides in Article 2(1) that ‘Each Contracting State shall in every case accord investment fair and equitable treatment’. 68 Article 10(1) of the ECT stipulates: ‘Each Contracting Party shall […] create stable, equitable, favourable and transparent conditions for Investors […] to make Investments […] to accord at all times to Investments […] fair and equitable treatment. […] no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal.’ 69 See e.g. Antaris Award, paras 360–2.

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ing circumstances. Changes in the legislation may be considered breaches of the FET if they represented a repudiation of assurances made by the host state to the foreign investor at the time of making the investment. Differing views exist on what constitutes an assurance or commitment from a government to an investor when its unilateral modification entails a breach of legitimate expectations.70 The FET standard is fact-specific. The Antaris tribunal adopted a broad interpretation and accepted that the promises or representations to investors may arise from provisions that are construed as guarantees in the host state’s legislation71 (unlike other tribunals).72 They could be inferred from domestic legislation in the context of its background, including official statements without legal force73 (covering explanatory reports to the Act on Support, information from the regulator on the calculation of the feed-in tariff, proposed amendments to the Act, statements of the ministers when submitting a new bill to the Parliament and national communication of the Czech Republic on the UN Framework Convention on Climate Change). According to the Antaris tribunal, there was no doubt that the Czech government promoted the incentive regime at home and abroad and described the main element of the feed-in tariff in terms of a ‘guarantee’.74 Notwithstanding the above, legitimate expectations cannot be raised by a state representation or an assurance contained in documents to which there is no proof the investor was privy at the time of making the investment, such as political representations discussing the enactment of a support scheme of which the investor was unaware.75 If general legislation is to be the source of a legitimate expectation, the investor must demonstrate that it has exercised appropriate due diligence and that its reliance on the relevant promise was reasonable. The due diligence requirement is, however, not a factor that would be generally recognized as decisive by all tribunals.76 In the Antaris case, the tribunal found the claimants’ pre-investment behaviour inadequate as they did not receive any written legal advice, did not commission specific 70 Michele Potesta, ‘Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of the Controversial Concept’ (2013) 28 ICSID Review 1, 88–122. 71 Antaris Award, para 366. 72 E.g. JSW Solar Award, paras 410, 417, stating that any general legal provision cannot give rise to legitimate expectations. See also Photovoltaic Knopf Award, para 510; and Voltaic Network Award, para 513. 73 Antaris Award, para 366. By contrast, I.C.W. Europe Award, para 554, specifically rejecting a report of the energy regulator. 74 Ibid. 75 JSW Solar Award, paras 423, 436. 76 Dissenting Opinions of Gary Born regarding Antaris Award (undated), para 74.

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due diligence nor did they request for specific representations from the host state’s regulators.77 In the tribunal’s view, the claimants acted in an essentially opportunistic way and had a speculative hope rather than an internationally protected expectation.78 Most tribunals assessed the requirement of regulatory stability under Article 10(1) of the ECT as a separate obligation under the FET standard.79 They concluded that regulatory measures do not breach FET if they are a reasonably balanced response to developments in a sector at a time of economic and political uncertainty.80 Some tribunals referred to the ‘margin of appreciation’ of states to regulate in the public interest without incurring liability.81 The decisive point for the tribunals to dismiss the claims (at times by a majority)82 seems to be a pragmatic conclusion that, even after the imposition of the solar levy, the claimants’ revenues remained within the parameters set by the Act on Support.83 The solar levy was carefully calibrated at the rate of 26 per cent, which ensured that the investors continued to have a guarantee of return of investment within 15 years with profit equal to at least 7 per cent per year over the life of the installation (later extended to 20 years), provided their solar plants met specific parameters.84 This, nevertheless, left the members of the tribunal divided on the interpretation issue, namely on whether there existed a separate commitment ensuring that minimum feed-in tariffs payable for a period of 15 years under Section 6(1)(b)(2) of the Act on Support were maintained. The arbitrators disagreed whether the Czech legal provision provides a separate guarantee of ‘absolute level of revenue’ in addition to the 15-year payback period. The majority concluded in the negative, while

Antaris Award paras 395, 397, 432, 440. Antaris Award paras 434–5. 79 I.C.W. Europe Award, para 529; Photovoltaic Knopf Award, para 483; Voltaic Network Award, para 487; WA Investments Award, para 570. Opposite, Antaris Award, paras 363 and 365 (regulatory stability was limited to legitimate expectations) and JSW Solar Award, para 356 (investor’s claims were limited to legitimate expectations). 80 JSW Solar Award, paras 406, 442. 81 Antaris Award, para 360. 82 Opposite Dissenting Opinions of Gary Born regarding Antaris and JSW Solar Awards (undated). 83 JSW Solar Award paras 415–416, WA Investments Award, para 577; I.C.W. Europe Award para 536; Photovoltaic Knopf Award para 490; Voltaic Network Award para 494. The same reasoning applied for breach of umbrella clause and full protection and security in JSW Solar Award, paras 451 and 465. 84 JSW Solar Award, para 406. 77 78

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arbitrator Gary Born issued dissenting opinions85 and resigned from four other tribunals deciding the Czech cases.86 3.3

Arbitrary and Unreasonable Behaviour

The actions of the Czech Republic were not assessed as arbitrary or irrational because, in the tribunals’ view, the Czech state had a rational objective when reducing excessive windfall profits and sheltering consumers from extreme electricity price rises.87 Measures that pursue a legitimate objective are neither arbitrary nor unreasonable.88 It does not matter whether a tribunal believes that a different solution might have been ‘better’, or that a state could have done ‘more’, as long as there is an appropriate correlation between the state’s objectives and the measures it took.89

4.

REFLECTION OF THE FEED-IN TARIFF IN INTERNATIONAL INVESTMENT LAW REFORMS

Historically, the protection afforded to foreign investments under the IIAs has been exceptionally broad, including guarantees vis-à-vis the host state’s regulatory change, and unreasonable conduct.90 The interpretation of the inherently ambiguous fair and equitable standard produced inconsistent arbitral awards and contributed to the criticisms of the overall investment protection system. In response to such critical voices, many states have started the process of negotiating new trade and investment agreements, modernizing or terminating existing treaties and revising treaty models aimed at rebalancing the entire regime by clarifying existing concepts and introducing environmental

85 Dissenting Opinions of Gary Born regarding Antaris and JSW Awards (undated). The claimants were guaranteed a minimum level of feed-in tariffs over a specified statutory period and, thus, the tariff reduction constituted an obvious violation of the FET. 86 WA Investments; I.C.W. Europe; Photovoltaic Knopf; and Voltaic Network. See note 5. 87 Antaris Award, para. 444 88 JSW Solar Award para 416. 89 Antaris Award, paras 443-444; I.C.W. Europe Award, para 642; Photovoltaic Knopf Award, para 603; WA Investments Award, para 689; and Voltaic Network Award, para 608. 90 Federico Ortino, The Origin and Evolution of Investment Treaty Standards: Stability, Value, and Reasonableness (Oxford University Press, 2019) 175–6.

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carve-out provisions.91 The ECT alone has generated 142 disputes,92 with a large part of them attributable to the RE cases. The reform-oriented clauses cover substantive and procedural aspects of the IIAs.93 The provisions on FET and regulatory stability are the cornerstones of investors’ protection regarding feed-in tariffs. States focus on clarity in treaty drafting when defining the scope of the FET’s commitments (open-ended lists of obligations or closed list of the most outrageous measures constituting FET breaches).94 There is also a trend of preserving the state’s ‘right to regulate’ for legitimate public policy objectives.95 Safeguarding domestic policy space and providing more clarity on the scope of protection for foreign investors are among the reforms’ key aims. Some new treaties disregard legitimate expectations altogether. Other proposals limit the source of the expectations to specific representations and allow the tribunal to take them into account as a part of the FET and not as a self-standing commitment.96 The EU proposal on the ECT’s modernization stipulates that the investment protection provisions should not be interpreted as a commitment from the state that it will not change its legal and regulatory framework in the future, even if that may negatively affect the operation of investments or the investor’s expectation of profits. The proposal in particular states that a contracting state’s decision not to issue, renew or maintain a subsidy in the absence of any specific commitment under law or contract to issue, renew or maintain that subsidy shall not constitute a breach of the treaty.97 New developments can potentially minimize exposure to claims regarding support schemes if unchangeability was not specifically guaranteed by law or contract.98 Interestingly, the EU has recently prohibited its Member States from unpredictably changing their RE support schemes if it negatively affects 91 For example, Comprehensive Economic and Trade Agreement (CETA), Brazil– India Bilateral Investment Agreement (2020) or EU–Vietnam Investment Protection Agreement (2019). 92 Energy Charter Secretariat, ECT statistics www​.energychartertreaty​.org/​cases/​ list​-of​-cases/​accessed 1 April 2022. 93 For details on reform actions see for example UNCTAD, UNCTAD’s Reform Package for the International Investment Regime (updated edition, 2018). 94 For example, CETA, Brazil–India Bilateral Investment Agreement (2020) or EU–Vietnam Investment Protection Agreement (2019). 95 EU text proposal for the modernization of the Energy Charter Treaty (undated) Part III https://​trade​.ec​.europa​.eu/​doclib/​docs/​2020/​may/​tradoc​_158754​.pdf accessed 1 April 2022. 96 Ibid., art 10. See also Decision of the Energy Charter Conference (CCDEC 2019 08 STR. 6 October 2019) 17. 97 Ibid., Part III. 98 Termination of intra-EU BITs based on the Agreement for the termination of Bilateral Investment Treaties between the Member States of the European Union (OJ

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the rights conferred thereunder, while emphasizing that ‘policy unpredictability and instability have a direct impact on overall costs of deploying RE in the EU’.99 Consequently, EU investors should benefit from the stability of the feed-in tariffs, if used in the future, on the basis of national laws before ordinary courts.

5. CONCLUSION Recognizing the positive effect of renewable energy sources on environmental protection and sustainable development, and following the trend in Europe, the Czech Republic supported the development and use of electricity from renewables using a feed-in tariff. The statutory provisions guaranteed that minimum tariffs set by the state regulator would be paid to RE producers to achieve a period of return on investment of 15 years. Due to the uncontrollable growth of the solar energy market and rising costs of financial support, the government imposed a levy on certain categories of photovoltaic plants in an attempt to stabilize the scheme. This gave rise to both domestic litigation and international investment claims against the Czech state. The feed-in tariff regulation was unclear as to whether the Czech state also guaranteed certain minimum revenues per unit of electricity to be maintained over the payback period. The investment tribunals were divided on this issue, but in all so-far-rendered awards ruled in favour of the Czech state while concluding that the guaranteed 15-year period for the return on investment was not fundamentally jeopardized by the adoption of the solar levy. Consequently, the tariff reduction did not violate the FET standard. The RE support schemes and their termination or alteration, even if compliant with domestic law, can contravene state commitments arising from international investment agreements. Feed-in tariffs are able to create a situation of trust on the part of the investors due to the fixed duration of their payment. Retroactive amendments can undermine the stability and predictability of the support and pose the risk of being challenged for infringing investors’ rights, in particular for breaching the FET standard under old-generation IIAs. Public interest reasons might not suffice to justify governments’ subsequent alteration of the support and reducing the economic viability of the original investment. Solar energy disputes represent a new generation of cases arising from shifts in government policies on climate-related issues. In these cases, investors

L 169, 29.5.2020, pp.1–4) and a potential ECT’s inapplicability among EU Member States place further limit on future claims. 99 Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources [2018], OJ L 328, recital 29 and art 6.

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relied on pro-climate measures that government adopted in order to encourage investments in the RE sector and subsequently claimed that their investments were impaired once the states scaled back the promised economic support. Contrarily, some years ago the crux of investment cases implicating environmental policies was state-enacted environmentally friendly regulations that investors alleged had a detrimental effect on their investments. Modern investment treaty drafting seeks to limit investors’ rights arising from the FET standard, provide more clarity to investors and to host states on the scope of protection, and thus to limit states’ exposure to investment claims. The Czech example of investment disputes over the alterations of feed-in tariffs evidences that investment claims (despite the state’s prevailing victory) can adversely impact the development of the renewable energy sector.100 National policy makers whose states are bound by international investment treaties need to be cognizant of the scrutiny by international investment commitments when designing investment support policies. The recent OECD FDI Quality Toolkit expressly recommends that governmental targeted financial and technical support to stimulate low-carbon investment be subject to regular reviews and allow for adjustments as the RE sector matures.101

100 The uncontrolled ‘solar boom’, initial state inaction and the international investment disputes contributed to a negative public perception of renewables and stagnation of the Czech solar energy sector. The current share of photovoltaics is only 3 per cent of total electricity production in the Czech Republic. Czech Energy Regulatory Office, ‘Annual Report on the Operation of the Electricity System of the Czech Republic for the year 2020’ (Statistics Unit ERO, 2020) 11. 101 OECD, ‘FDI Qualities Policy Toolkit Policies for improving the sustainable development impacts of investment’ (OECD Consultation Paper, November 2021) 161.

10. The proliferation of offshore renewable energy in European seas: the regulatory challenges of emerging technologies for EU environmental law Nikolaos Giannopoulos 1. INTRODUCTION Against the backdrop of heated debates about fully integrating sustainability across EU policies, and motivated by the EU’s obligations under the Paris Agreement, the European Green Deal set out ambitious goals towards achieving zero pollution and climate neutrality by 2050.1 Remarkably, the European Green Deal purports to reconcile a variety of objectives that could be imagined to compete, including the supply of sustainable energy, the preservation of biodiversity and the achievement of a toxic-free environment. To that end, the EU has pledged to adopt ad hoc instruments2 as well as review and revise EU energy and environmental rules. Offshore renewable energy as a potentially infinite source, which does not – at least, directly – contribute towards carbon emissions, is projected to play a key role in the transition to zero-carbon energy systems.3 In that respect, the EU Offshore Renewable Energy Strategy highlighted that investments in marine renewables are indispensable for the EU to meet its climate commitments, improve the competitiveness of its energy market and safeguard energy security.4 EU Commission, ‘The European Green Deal’, COM (2019) 640 final. Regulation (EU) 2021/1119 of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 [2021] OJ L 243/1. 3 EU Commission, ‘Transforming the EU’s blue economy for a sustainable future’, COM (2021) 240 final, 3. 4 EU Commission, ‘An EU Strategy to harness the potential of offshore renewable energy for a climate neutral future’, COM (2020) 741 final. This chapter adopts the definition of offshore renewable energy envisaged under the EU’s Strategy. 1 2

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Discussions about the environmental benefits of offshore renewables usually focus on their contribution to carbon neutrality.5 In that light, the terms ‘clean energy’ or ‘green energy’ are used as synonyms for renewable energy.6 However, the EU’s ambitions regarding the expansion of marine renewables as a climate mitigation strategy as well as a solution for the energy crisis in Europe7 should not lead to an assumption that such forms of energy generation are necessarily benign for the environment.8 Despite the climate-related benefits of producing ‘green’ energy at sea and its relative environmental advantages juxtaposed to hydrocarbon extraction, the proliferation of marine renewable energy installations can severely affect marine ecosystems.9 Such adverse effects include the risk of fish collision and entanglement, the emission of underwater noise and electromagnetic fields, and loss of biodiversity and degradation of benthic and pelagic habitats.10 Moreover, the uncertainties surrounding the projected large-scale expansion of offshore renewable energy technologies raises enormous challenges for their environmental regulation.11 Nonetheless, marine renewables seem to be strongly promoted at the EU level despite their environmental tradeoffs and the potential risk-shifting in terms of marine biodiversity conservation,12 demonstrated by scientific assessments

5 Joseph Appiott, Amardeep Dhanju and Biliana Cicin-Sain, ‘Encouraging renewable energy in the offshore environment’ (2014) 90 Ocean Coast Manage 58. Also, C-379/98, Preussen Elektra AG v Schhleswag AG [2001] ECR 2001 I-02099, para 73. 6 Md Ershadul Karim et al, ‘Energy revolution for our common future: an evaluation of the emerging international renewable energy law’ (2018) 11 Energies www​ .mdpi​.com/​1996​-1073/​11/​7/​1769/​htm accessed 15 May 2022. 7 The rising energy prices in October 2021 have become so dire that the EU Commission asked Member States to accelerate the permit process for renewable energy developments: ‘EU Commission urges crisis rush for renewables licensing’, https://​energywatch​.com/​EnergyNews/​Policy​_​_​_Trading/​article13366547​.ece​?utm​ _campaign​=​EnergyWatch​%20Newsletter​&​utm​_content​=​2021​-10​-13​&​utm​_medium​=​ email​&​utm​_source​=​energywatch accessed 31 October 2021. 8 Andrea Copping and Lenaig Hemery (eds), ‘OES-Environmental 2020 State of the Science Report: environmental effects of marine renewable energy development around the world’ (2020), 4, https://​tethys​.pnnl​.gov/​sites/​default/​files/​publications/​ OES​-Environmental​-2020​-State​-of​-the​-Science​-Report​_final​.pdf accessed 15 May 2022. 9 M. Wing Goodale and Anita Milman, ‘Cumulative adverse effects of offshore wind energy development on wildlife’ (2016) 59(1) Journal of Environmental Planning and Management 1, 1–21; EU Commission, ‘Impact assessment, blue energy communication’, SWD (2014) final 15–16. 10 Copping and Hemery (n 8) 4, Goodale and Milman (n 9). 11 Copping and Hemery (n 8) 4. 12 Rakhyun Kim and Harro van Asselt, ‘Global governance: problem shifting in the Anthropocene and the limits of international law’ in Elisa Morgera and Kati Kulovesi

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regarding the cumulative effects of offshore activities.13 In that regard, it is posited that a fair balance between competing interests must be struck, as excessively prioritising environmental concerns may hinder the development of innovative renewable energy installations.14 The seeming discrepancy between the EU’s ambitions and achievements in regulating the externalities of marine renewables lies at the core of this contribution. Considering the challenges and opportunities in the process of recalibrating the EU environmental regulation of marine renewables, this chapter examines the potential of a co-regulatory paradigm in overcoming the constraints of and filling the gaps in the current legal framework. Following a brief overview of the EU environmental rules governing marine renewables, it discusses whether underlying challenges, such as regulatory complexity, uncertainty and the call for innovation in the market, test the limits of a binary approach to law and call us to reorientate our understanding regarding the ‘unbearable lightness of ought’.15 The chapter then explores whether and under which conditions co-regulation could reconcile competing EU objectives and offer future-proof solutions. To that end, it draws lessons from the achievements and weaknesses of examples of co-regulation within the EU legal order. Taking into account the advantages and limitations of this hybrid regulatory paradigm, the chapter concludes by highlighting the need for interdisciplinary research to determine whether co-regulation can help us navigate the sea of challenges in the regulation of this sector.

2.

MARINE RENEWABLES IN THE ERA OF THE EUROPEAN GREEN DEAL

Oceans are at the heart of global discourse on the necessity to improve coherence and harness synergies between strategies for climate change mitigation and biodiversity conservation.16 For instance, oceans operate as natural sinks for carbon emissions and regulate the climate, and are, thus, crucial allies in tackling both the climate and the biodiversity crises.17 At the same time, the (eds), Research Handbook on International Law and Natural Resources (Edward Elgar Publishing 2016) 473–95. 13 UN, ‘The Second World Ocean Assessment: World Ocean Assessment II’ [2021] accessed 27 May 2022. 14 Stephanie Merry, ‘Marine renewable energy: could environmental concerns kill off an environmentally friendly industry?’ (2014) 32 Underwater Technology 1, 1–2. 15 Paraphrasing the title of Milan Kundera’s novel The Unbearable Lightness of Being. 16 IPCC, ‘Special Report on the Ocean and the Cryosphere in a Changing Climate’ [2019]. 17 EU Commission, ‘EU Biodiversity Strategy for 2030’, COM (2020) 380 final, 3.

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marine environment has traditionally been linked to economic development. Healthy oceans and the sustainable blue economy they support are essential for the transformation pursued under the European Green Deal. Marine renewables offer a prominent example of the financial and social benefits resilient oceans could provide. With a higher average output than land-based renewable energy generation, they are expected to materially contribute to the EU’s targets of reducing GHG emissions by at least 55 per cent of 1990 levels by 2030 and becoming climate neutral by 2050. To that end, the EU’s offshore renewable energy strategy builds on increased momentum for the sector and aims to multiply its capacity five-fold by 2030 and 30-fold by 2050.18 It is estimated that achieving that unparalleled capacity of energy generation at sea will require investment of up to 800 billion euros.19 Currently, EU industry is among the global leaders in ocean energy technologies – primarily in the form of wind, wave and tidal energy, but other technologies, such as algal biofuels, ocean thermal energy conversion and floating photovoltaic installations, are projected to develop at a commercial scale in the near future.20 Although the invisible hand of the market and technological developments are expected to continue driving the growth of the sector, regulatory intervention by the EU and its Member States is necessary to establish a credible framework for investors.21 For instance, pilot projects on multi-use platforms, which enable the creation of artificial reefs or the combination of aquaculture and energy exploitation, are boosted to minimise the impacts on marine species and reconcile the placement of energy infrastructure with other economic activities.22 The EU’s strategy regarding marine renewables exemplifies the paradigm shift in the EU’s conception of environmental and climate objectives as co-drivers of the sustainable blue economy.23 Yet there are remarkable gaps between, on the one hand, the EU’s environmental and climate objectives, and on the other hand, the suggested implementation measures which must

Commission (n 4). JRC, ‘Facts and Figures on Offshore Renewable Energy Sources in Europe’ [2020], JRC121366. 20 EU Commission, ‘Progress of clean energy competitiveness’, SWD (2020) 953 final. 21 Based on the Member States’ National Energy and Climate Plans, policies would lead to an installed capacity of approx. 90GW in 2050, which is way below the EU’s goal for 400W, accessed 15 May 2022. 22 Nathalie Steins et al, ‘Combining offshore wind farms, nature conservation and seafood: Lessons from a Dutch community of practice’ (2021) 126 Marine Policy 1, 2. 23 Ludwig Krämer, ‘Planning for climate and the environment: the EU Green Deal’ (2020) 17 Journal of European Environmental & Planning Law 267, 268. 18 19

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be overcome to reconcile the targets of zero pollution and climate neutrality.24 The zero pollution goal may translate into requirements that may prove inconsistent with climate mitigation measures. For instance, notwithstanding the scientific uncertainty about the cumulative externalities of large-scale deployment of offshore renewables, the current EU legal framework concerning Strategic Impact Assessment (SEA) and Environmental Impact Assessment (EIA) leaves much to be desired in terms of evaluating the cumulative effects of such technologies.25 This may be partly due to the fact that the majority of the EU environmental legislation has been developed for terrestrial activities. For the same reason, mitigation measures that may be effective for projects on land may not be equally effective at sea, given the lower scientific understanding about the cumulative impacts of offshore activities.26 In order to turn the EU’s decarbonization plan into a success, the environmental regulation of, inter alia, marine renewables must live up to the constitutional principles of the EU legal order.27 Therefore, the question remains as to whether the EU environmental rules can address the challenges of the rapid expansion of marine renewables in European seas.

3.

EU LAW AND THE ENVIRONMENTAL REGULATION OF MARINE RENEWABLES

Before assessing the EU environmental instruments governing offshore renewables, it is imperative to first place them in the framework of the EU’s environment obligations under its constitutive Treaties. Although the EU does not have exclusive competence regarding environmental protection,28 it retains

24 Ruven Fleming and Romain Mauger, ‘Green and just? An update on the “European Green Deal” (2021) 17 Journal for European Environmental & Planning Law 164, 164–80. 25 Catherine Ann Caine, ‘The race to the water for offshore renewable energy: assessing cumulative and in-combination impacts for offshore renewable energy developments’ (2020) 32 Journal of Environmental Law 83, 84. 26 Ibid 103. 27 Art 3(3) Consolidated Version of the Treaty on European Union [2008] OJ C115/13 (TEU). 28 The EU has signed and ratified the United Nations Convention on the Law of the Sea, Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof [1998] OJ L 179/1.

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a sui generis role in developing and harmonising the environmental rules, which are applicable to marine renewables.29 3.1

The EU Constitutional Framework and the Regulation of Marine Renewables

At the EU constitutional level, EU institutions must take all the necessary measures to achieve the preservation, protection and improvement of the quality of the environment.30 According to the TFEU, EU environmental policy must aim at a high level of protection, based on the precautionary, prevention and polluter pays principles.31 This ambition has become a binding objective and is leading the environmental reorientation of the EU legal order.32 Besides, the principle of environmental integration dictates that environmental considerations must be integrated into the implementation of EU policies and legislative acts, irrespective of the legal basis of these acts.33 Read in combination with article 37 of the EUCFR, these rules establish dynamic duties as they do not only require the EU to prevent degradation, but also to improve the quality of the environment.34 Nonetheless, these provisions do not prioritise environmental considerations over economic or social objectives. Instead, they require EU bodies to ‘reach an integrated and balanced assessment of the relevant environmental aspects’ and to ensure ‘that the resulting decisions respect the principle of proportionality’.35 Concerning environmental protection, the EU has shared competence with its Member States.36 As far as offshore energy activities are concerned, the TFEU contains few references to the EU’s competence to regulate marine-related matters. Nonetheless, the EU’s competence covers the marine environment, as attested by ocean-specific directives such as the Marine Strategy Framework

29 C- 459/03 Commission of the European Communities v Ireland [2006] ECR I-4635, paras 105–11. 30 Art 191(1) Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1 (TFEU). 31 Art 191(2) TFEU. 32 Alicja Sikora, Constitutionalisation of Environmental Protection in EU Law (Europa Law Publishing 2020). 33 Art 11 TFEU. 34 Robin Churchill, ‘The European Union and the Challenges of Marine Governance: From Sectoral Response to Integrated Policy?’ in Peter Schei and Davor Vidas (eds) The World Ocean in Globalization: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Brill 2011) 395. 35 Elisa Morgera, ‘European Environmental Law’ in Shawkat Alam et al (eds) Routledge Handbook of International Environmental Law (Routledge 2012) 29. 36 Art 2(2) TFEU.

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(MSFD), the Maritime Spatial Planning Directive (MSP) and the Offshore Safety Directive.37 One significant novelty of the TFEU is that it grants the EU institutions the power to legislate to ensure the EU’s energy objectives, such as the promotion of energy security and efficiency through the development of renewable sources of energy.38 Article 194 of the TFEU refers to the EU’s competence in environmental protection, connoting that EU institutions must integrate environmental concerns in measures furthering its energy objectives, including the promotion of renewable energy. Remarkably, this provision contains a significant caveat which can affect the EU regulation of marine renewables. It stipulates that EU law and policy ‘shall not affect a Member State’s choice to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply’.39 It comes as no surprise that the regulation of offshore energy activities had been considered a prerogative of Member States, because it can affect their choice between different energy sources.40 However, this approach has gradually changed, with an assertion being made of the EU’s competence in the environmental regulation of the offshore energy sector.41 In light of the EU’s duties in substantiating environmental rules, the following section of the chapter examines whether and to what extent the EU has formulated specific (or directly applicable) environmental rules regarding the production of renewable energy at sea. 3.2

Secondary EU Law and the Incidental Environmental Regulation of Marine Renewables

EU environmental law addresses selected issues concerning marine renewables and therefore offers a piecemeal regulation of their risks.42 The vast 37 Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy [2008] OJ L 164/19, Directive 2014/89/EU establishing a framework for Maritime Spatial Planning [2014] OJ L 257/135, Directive 2013/30/EU on safety of offshore oil and gas operations and amending Directive 2004/35/EC [2013] OJ L 178/66. 38 Art 194(1) TFEU. 39 Art 194(2) TFEU. 40 EU Parliament, ‘Facing the Challenges of Safety of Offshore Oil and Gas Activities’ (2011/2072(INI)) [2011] 6. 41 Ronán Long, ‘The inexorable rise of the United Nations Convention on the Law of the Sea within the European legal order’ in Michael Lodge and Myron Nordquist (eds) Peaceful Order in the World’s Oceans (Brill 2014) 164. 42 Suzanne Boyes and Michael Elliot (2014), ‘Marine legislation: the ultimate “horrendogram”: international law, European directives and national implementation’ (2014) 86 Marine Pollution Bulletin 39, 39.

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majority of these rules do not have a particular focus on marine renewables, as they were not developed per se to regulate offshore activities.43 For instance, the EIA directive requires the prior conduct of EIAs when projects are likely to have significant environmental effects.44 Although that duty largely applies to offshore oil and gas installations, the main weakness of the EIA directive regarding marine renewables is that EIAs are not compulsory across the board, because these activities do not fall under its Annex I.45 Instead, Member States maintain discretion in determining whether these projects require the prior conduct of an EIA.46 Although the European Parliament called for an expansion of the directive’s scope to cover all offshore energy projects, the 2014 amendment failed to address these concerns.47 To determine which projects must be subjected to an EIA, Member States have introduced screening thresholds, which in the case of offshore wind farms are based on the number of wind turbines, their capacity for electricity production and their size.48 This practice, however, could compromise environmental protection, since the nationally developed thresholds do not ensure that all types and sizes of marine renewable project are subject to an EIA.49 For example, they do not cover small-scale projects and seem to ignore their potential long-term cumulative effects. The application of the Birds and Habitats directives, the cornerstone of EU nature conservation rules, is also incidental when it comes to marine renewables. In particular, area-based protection measures under the directives in the marine environment have been scarce in comparison to those on land.50 That

43 EU directives apply offshore in the EEZ and the continental shelf of its Member States, as far as they exercise sovereign rights and jurisdiction in those areas: C-6/04, Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. [2005] ECR I-9056. 44 Art 2(1) Directive 2014/52/EU of 16 April 2014 on the assessment of the effects of certain public and private projects on the environment [2014] OJ L 124/1. 45 An EIA is compulsory for projects listed under its Annex I: see art 4(1) EIA directive. 46 Only offshore wind installations are mentioned as a category of activities falling under Annex II of the directive, which means that Member States can decide whether an EIA is necessary, art 4(2) EIA directive. 47 Parliament (n 40) 7. 48 EU Commission, ‘Interpretation of Definitions of Project Categories of Annex I and II of the EIA Directive’ [2015] 44-45, C-215/06 Commission of the European Communities v Ireland [2008] ECR I-04911, para 108. 49 Carlos Soria-Rodríguez, ‘The European environmental regulation of marine renewable energies’ (2019) 29(1) RECIEL 95, 102. 50 Sandy Luk and Sarah Gegerson. ‘Marine species protection and management in the European Union. Who will save our dolphins?’ in Born et al (eds), The Habitats Directive in its EU Environmental Context. European Nature’s Best Hope? (Routledge 2014) 404–6.

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difference might be partially explained by the fact that the Annexes to these directives have a limited focus on marine species and their habitats.51 Although the directives require Member States to conduct an assessment of the implications of plans or projects which may cause significant disturbances to nature conservation,52 the authorisation of projects is not strictly forbidden even when these adversely affect protected sites.53 When there are no alternative solutions and the project must be conducted for imperative reasons of overriding public interest, Member States must adopt mitigation measures to minimise or offset the negative impacts.54 Yet, States can authorise the said projects even when mitigation measures are not effective at preventing environmental degradation, upon the condition of adopting compensatory measures.55 For instance, the production of renewable energy in pursuance of climate goals can be considered an overriding public interest justifying the authorisation of projects.56 However, whether such interest should be prioritised over conservation goals needs to be assessed individually.57 Therefore, the effectiveness of these directives in protecting the environment from the impact of offshore renewables largely depends on their domestic implementation and the judicial scrutiny thereof. The potential frictions between the expansion of marine renewables and environmental protection could be partially tackled through maritime spatial planning.58 MSP can reconcile competing activities and arbitrate between sectoral interests to manage their assimilative impact on the environment.59 Under the MSP directive, Member States must contribute to the sustainable

51 EU Commission, ‘Guidelines for the establishment of Natura 2000 Network in the Marine Environment: Application of the Habitat Directive’ [2007] 14. 52 Art 6(3) Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L124/1. 53 Art 6 Habitats directive. 54 Art 6(2) Habitats directive. 55 Art 6(4) Habitats directive, see also the potential derogations under article 9 of Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds OJ L20/7. 56 Chris Backes and Sanne Akerboom, ‘Renewable Energy Projects and Species Protection’ www​.uu​.nl/​sites/​default/​files/​renewable​_energy​_and​_species​_protection​_a​ _comparison​_28​_may​_2018​.pdf accessed 15 May 2022. 57 Sander van Hees, ‘Large scale water-related innovative renewable energy projects and the Habitats and Birds Directives: legal issues and solutions’ (2018) 27 European Energy and Environmental Law Review 15, 27. 58 Eric Van Doorn and Sarah Gahlen, ‘Legal aspects of marine spatial planning’ in Katherine Yates and Corey Bradshaw (eds) Offshore Energy and Marine Spatial Planning (Taylor & Francis 2018) 81. 59 EU Commission, ‘A Roadmap for Maritime Spatial Planning: Achieving Common Principles in the EU’, COM (2008) 791 final, 2.

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development of the offshore energy sector, which presupposes that they will protect and improve the quality of the environment.60 They have to formulate and implement MSP and must include any offshore energy generation infrastructure in these plans, albeit they maintain a wide margin of discretion in doing so.61 While it appears that the MSP directive entails a robust environmental protection element, the formulation of MSP is equally – if not primarily – relevant for the competitiveness of the EU’s economy.62 Specifically, MSP can boost legal predictability and attract investments in offshore activities.63 The MSFD, the first directive devoted to marine environmental protection,64 is the most significant EU law instrument regarding offshore renewables. Its main goal was to achieve a good environmental status of EU seas by 2020.65 Adopting a decentralised, goal-based approach, the directive does not prescribe measures to attain that goal, but requires Member States to devise environmental strategies and measures.66 Member States must ensure that there are no significant impacts on or risks to marine biodiversity, marine ecosystems, human health or any other legitimate uses of the sea.67 Their duty is embedded in a sophisticated legal framework, which includes checks and balances, sets the legal parameters for its implementation and vests the EU with enhanced powers of oversight and compliance control.68 All these actions require close coordination at the regional sea level, where the institutional and normative framework of regional sea agreements has facilitated the implementation of the relevant EU rules.69 Nonetheless, the directive is not devoid of normative weaknesses. For instance, Member States must adopt measures that are ‘cost-effective and technically feasible’,70 a qualifier that can lower the standard of protection. Member States can justify derogations from the 60 Art 5(2) Directive 2014/89/EU of 23 July 2014 establishing a framework for maritime spatial planning [2014] OJ L257/135. 61 Art 3(1) and 8(2) MSP directive. 62 Antonia Zervaki, ‘Introducing maritime spatial planning legislation in the EU: fishing into troubled waters?’ (2015) Maritime Safety and Security Law Journal 95, 103. 63 MSP directive, recital 5. 64 MSFD, recital 43. 65 Art 3(5) MSFD. 66 Art 1(1) and (2) MSFD. 67 Art 1(2) MSFD. 68 Lawrence Juda, ‘The European Union and the Marine Strategy Framework Directive: continuing the development of European ocean use management’ (2010) 41 Ocean Development & International Law 32, 39. 69 Nikolaos Giannopoulos, ‘The interplay between EU law and regional sea conventions: shaping environmental protection in relation to offshore energy production across Europe?’ (2022) 31 European Energy and Environmental Law Review 2, 2–18. 70 Art 13(3) MSFD.

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duty to protect the marine environment by adopting mitigation measures71 and can make use of some quite generous exceptions to consider socio-economic considerations.72 These exceptions allow the modification of the physical characteristics of marine waters in case of overriding public interest reasons, which could be deemed by the Member States as outweighing the environmental impacts. 3.3

The Lack of Specific EU Environmental Rules on Marine Renewables: A Paradox?

Despite the optimistic goals under the MSFD, its implementation report revealed that the EU and its Member States have failed to achieve a good environmental status of European seas. As conceded in the European Green Deal, the EU has not met the Aichi target 11 under the UN Biodiversity Convention, which required that 10 per cent of coastal and marine areas are conserved by 2020.73 Instead, a quarter of the EU’s coastal area has probably lost its seabed habitats due to economic activities.74 Marine biodiversity loss continues in the EU, as ecosystems in European seas remain at ‘vulnerable’ status.75 Certain groups of species remain under threat of extinction, including seabirds (such as the Northern Gannet and the Black-legged Kittiwake), elasmobranchs (that is, sharks, skates and rays) and cetaceans (covering whales, dolphins and porpoises). Impulsive underwater pressure introduced, inter alia, by renewable energy platforms has been identified as one of the major factors affecting ecosystems.76 Although such noise is currently – prior to the anticipated scale-up of marine renewables – spatially restricted to approximately 8 per cent of the EU’s marine area, it is still present in large areas of European seas.77 Given the potential impacts of marine renewables, the EU has emphasised its responsibility to ensure marine environmental protection.78 Considering 71 Alain Norro, ‘On the effectiveness of a single big bubble curtain as mitigation measure for offshore wind farm piling sound in Belgian Waters’ in Steven Degraer et al (eds) Environmental Impacts of Offshore Wind Farms in the Belgian Part of the North Sea (RBINS 2018) 19. 72 Art 14 MSFD. 73 Commision (n 1) 10. 74 Commission, ‘Report on the Implementation of the Marine Strategy Framework Directive’, COM(2020) 259 final 16. 75 EU Commission, ‘Combined Evaluation Roadmap/Inception Impact Assessment of the MSFD’ [2021], 3. 76 Commission (n 74) 22–3. 77 Ibid 21. 78 Decision 1386/2013/EU of the European Parliament and of the Council on a General Union Environment Action Programme to 2020 [2013] OJ L354/171, Annex, paras 21–2.

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the transboundary nature of marine biodiversity, EU intervention and regional coordination of environmental approaches are necessary to avoid regulatory fragmentation.79 Adopting different strategies for tackling the key pressures caused by marine renewables would result in ineffective protection of ecosystems in European seas. In that respect, the EU institutions have repeatedly called for the stepping up of efforts to keep offshore energy activities compatible with the goal of good environmental status of European seas.80 ‘[O]ffshore renewable energy will only be sustainable if it does not have adverse impacts on the environment.’81 Nonetheless, pollution and other disturbances of ecosystems by the growing deployment of marine renewables remain virtually unregulated under EU law.82 Although there are scarcely any specialised international rules with direct implications for the environmental regulation of offshore renewables,83 the lack of specific EU environmental rules appears paradoxical. The lack of sector-specific rules seems incoherent with the zealous goals of EU environmental policy instruments. For instance, the EU Biodiversity Strategy for 2030 envisaged the restoration of damaged marine ecosystems and proclaimed that, inter alia, 30 per cent of the EU seas should be classified as protected areas and at least one third of those – representing 10 per cent of European seas – should be strictly protected (up from 1 per cent today).84 On that matter, the EU Commission argues that the scaling up of the offshore wind industry is estimated to require less than 3 per cent of the European maritime space and, therefore, can be compatible with the biodiversity goals.85 Yet, the Commission admits that there is a considerable degree of uncertainty and thus, ‘the situation must be monitored and our scientific knowledge updated as capacity is scaled up and new technologies are developed’.86 EU legislation does not oblige Member States to adopt biodiversity restoration plans, and there are not binding targets concerning the objectives of the 2030 Biodiversity Strategy. However, the need for stronger EU action becomes more acute as biodiversity loss is exacerbated by climate change.87

79 Nikolaos Giannopoulos, ‘Regionalism and marine environmental protection: the case of offshore energy production’ (2021) accessed 15 May 2022. 80 EU Council, Conclusions on Blue Growth of 26 June 2017, 10662/17, para 24. 81 Commission (n 4) 11. 82 Krämer (n 23) 277. 83 Giannopoulos (n 69). 84 Commission (n 17) 5. 85 Commission (n 4) 2. 86 Ibid 10. 87 IPCC (n 16).

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Overall, EU legislation and policy appear to be preoccupied with achieving climate targets and accommodating economic considerations to ensure energy security and the functioning of the internal market.88 Characteristically, the Biodiversity Strategy emphasised the economic benefits of nature protection measures and the compelling business case for biodiversity conservation towards Europe’s economic recovery.89 On the contrary, the EU has been reluctant to create binding environmental rules.90 In particular, the EU has so far waited to see how technology unfolds and has only developed non-binding instruments.91 This choice may be partially due to the opposition to prescriptive environmental rules by Member States and stakeholders.92 Postponing the adoption of preventive measures at the EU level appears inconsistent with the precautionary principle.93 Yet, a wait-and-see approach does not necessarily equate regulatory paralysis, so long as the EU is actively monitoring developments before adopting environmental rules.94 It echoes the fast pace of technological developments in the sector: if the EU adopted hard-binding rules immediately, they could become obsolete. However, in the absence of sector-specific instruments, ocean energy projects are only subject to the sectoral EU environmental directives.95 The lack of specificity and the heterogeneity of these instruments increase the environmental risks, because Member States retain broad discretion in formulating implementation measures and can prioritise economic interests. According to economic theories, the ensuing regulatory competition and the correlated uncertainty send negative signals to the industry and can negatively affect technological innovation.96

Commission (n 4). Commission (n 16), 4, 15–18, 179. 90 Annie Cudennec, ‘The European legal framework for marine renewable energies’ (2016) 30 Ocean Yearbook 488, 495. 91 EU Commission, ‘Guidance document on wind energy developments and EU nature legislation’, COM (2020) 7730 final. 92 Maria Gavouneli, ‘Oil spill response in the EU’ in Günther Handl and Kristoffer Svendsen (eds) Managing the Risk of Offshore Oil and Gas Accidents: The International Legal Dimension (Edward Elgar Publishing 2019) 135. 93 Article 191(2) TFEU. 94 Steins (n 22) 14. 95 Ronán Long, ‘Harnessing offshore wind energy in Europe: legal challenges and policy conundrums in the European Union’ (2014) 29 International Journal of Marine and Coastal Law 690, 702–3. 96 Michèle Finck, ‘Blockchains: regulating the unknown’ (2018) 19 German Law Journal 665, 676. 88 89

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CHALLENGES AND OPPORTUNITIES IN RECALIBRATING THE ENVIRONMENTAL REGULATION OF MARINE RENEWABLES

In the process of reviewing the MSFD, the EU is exploring avenues to tackle challenges in the regulation of offshore activities.97 Among others, the Commission stressed the need to complement the MSFD with specific legislation when there are gaps, as in the case of marine renewables.98 The plans for a transformation of the blue economy have triggered discussions about how and who should regulate offshore renewables to achieve a competitive energy market, safeguard innovation and protect the environment. Indeed, while the offshore energy sector has taken an impressive stride forward by advancing technologies, significant knowledge gaps remain regarding the status of the marine environment as well as the cumulative and long-term impact of the expansion of marine renewables.99 Besides the extensive knowledge, assessment and reporting needed, the main challenges for the proper regulation of marine renewables are related to implementation of the EU instruments, which suffers due to a lack of expertise, resources and political will at the domestic level.100 4.1

The Call for Supplementing EU Legislation with Private Regulation

Given the challenges of regulating dynamic markets, the assumption that top-down regulation is a panacea is challenged. Member States often lack the capacity and data to keep abreast of technological and scientific developments and the implementation of technical rules is costly and burdensome. At the same time, internal market rules constrain the discretion of Member States to intervene in order to avoid regulatory fragmentation and the ensuing distortion of competition.101 Although private regulation has gained momentum, it has been criticized as an ineffective alternative to public regulation, inter alia, due to the risk for regulatory capture and the lack of robust enforcement

Art 23 MSFD. EU Commission, ‘Report on the implementation of the MSFD’, SWD (2020) 60 final, 26–9. 99 Bastien Taormina et al, ‘A review of potential impacts of submarine power cables on the marine environment: knowledge gaps, recommendations and future directions’ (2018) 96 Renewable and Sustainable Energy Reviews 380, 380. 100 Commission (n 98). 101 EU Commission, ‘Guidelines on State aid for environmental protection and energy 2014–2020’ [2014] OJ L200/1. 97 98

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mechanisms.102 In practice, however, the public–private division of regulation distorts the nuanced reality, as pure self-regulation is rare; there is often some sort of delegation or endorsement by Member States or the EU.103 The rapid pace with which the marine renewable sector is projected to expand to deliver the European Green Deal requires some flexibility in the regulatory framework.104 Regulatory experimentation could bring innovation to the market faster, while safeguarding public interest considerations.105 Currently, pilot projects are assessing the impacts of multi-use, nature-inclusive offshore energy platforms.106 Against that background, this chapter suggests the endorsement of a co-regulatory, where goal-based regulation dictates objectives, allowing private regulators some discretion in selecting the implementation measures.107 To that end, it suggests drawing lessons from existing hybrid regulatory arrangements, since co-regulation forms part of the EU’s regulatory toolbox.108 Such an approach seems consistent with the EU policy recommendations. For example, the MSFD Impact Assessment considers strengthening the directive’s implementation by adopting delegated acts to address administrative burden.109 Similarly, the 2030 EU Biodiversity Strategy calls for a hybrid approach to regulating economic activities, referring to the establishment of a European biodiversity governance framework, which will include a set of agreed indicators and will enable regular assessment and corrective action. This element of oversight could address the systemic limitations of self-regulation by establishing safeguards in case private regulation fails to achieve the set goals.110 The Commission has also suggested a collaborative approach 102 Study for the Assessment of the Implementation of the Code of Practice on Disinformation, SMART 2019/0041 [2020]. 103 Art 40 and 41 Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC OJ L119/1. 104 SMART (n 102). 105 Esther Van der Waal et al, ‘Participatory experimentation with energy law: digging in a ‘regulatory sandbox’ for local energy initiatives in the Netherlands’ (2020) 13 Energies 458. 106 TNO Project on Energy Islands and Green Production Platforms www​ .tno​ .nl/​en/​focus​-areas/​energy​-transition/​roadmaps/​system​-transition/​towards​-a​-reliable​ -affordable​-and​-fair​-energy system/energy-conversion-and-storage/energy-islands-an d-green-production-platforms/ accessed 15 May 2022. 107 Interinstitutional Agreement on Better Law-Making, OJ L123/1, para 18. 108 European Economic and Social Committee on Self-Regulation and Co-regulation in the EU legislative framework, Opinion of 22 April 2015, C291/29. 109 Commission (n 75) 4. 110 European Court of Auditors, ‘Special Report: The EU System for Certification of Sustainable Biofuels’ [2016] 27.

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to address complex regulatory challenges.111 Specifically, the Commission proposed the establishment of ‘communities of practice’, where the industry, social partners, NGOs and scientists can cooperate on joint projects relating to multi-purpose offshore installations.112 The Community of Practice in the Dutch part of the North Sea offers an example of participatory tools, which can assemble evidence for data-driven regulation of emerging technologies.113 A co-regulatory approach can engage the co-responsibility of the relevant actors in meeting environmental commitments. Making the industry co-responsible for its regulation can improve the implementation of EU law on the ground, by facilitating less costly enforcement as well as continuous review and adaptation of the regulatory framework.114 This strategy can tap into the decentralised expertise of the industry.115 Importantly, private regulation is not limited by political and territorial constraints.116 Instead, it can foster regulatory competition in promoting public interests, as – according to economic theory – the industry will invest in environmental protection if market competitiveness requires it, or from fear of stricter governmental regulation.117 Such competition could lead to a race to the top in terms of environmental standards rather than seeking compliance with minimum harmonised standards under EU directives.118 It has relevantly been suggested that market-based coercion and the diffusion of best practices can replace the need for sanctions in ensuring enforcement of environmental standards, even though there is overwhelming evidence showcasing that market-based instruments are not without significant environmental externalities.119

Commission (n 17) 15. Commission (n 4) 10. 113 Steins (n 22) 2. 114 Molly Cohen et al, ‘Self-regulation and innovation in the peer-to-peer sharing economy’ (2015) 82 University of Chicago Law Review 116, 129–32. 115 Maximilian Grafenstein, ‘Co-regulation and the competitive advantage in the GDPR: data protection certification mechanisms, codes of conduct and the ‘state of the art’ of data protection-by-design’ [2019] accessed 15 May 2022. 116 Mehdi Piri Damagh and Michael Faure, ‘Self-regulation versus public regulation: an analysis of environmental and safety standard setting in oil and gas pipeline sector’, in Niels Philipsen et al (eds) Market Integration: The EU Experience and Implications for Regulatory Reform in China (Springer 2016) 287. 117 Damagh (n 116) 297. 118 Michael Fehling, ‘Energy transition in the European Union and its Member States: interpreting federal competence allocation in the light of the Paris Agreement’ (2021) 10 Transnational Environmental Law 339, 359–60. 119 Michelle Reese, ‘Nanotechnology: using co-regulation to bring regulation of modern technologies into the 21st century’ (2013) 23 Health Matrix 537, 563. 111 112

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Besides, the design of a hybrid governance arrangement may determine its effectiveness in delivering environmental goals.120 For co-regulation to work, clear goals need to be set out, as well as precise conditions under which co-regulation might apply and the effects it may generate.121 EU meta-regulation is needed to ensure that private and public interests are balanced.122 To maintain the technological neutrality of EU rules, they have to be supported by an intermediate normative layer, such as specialised ‘techno-legal standards’ which can translate the environmental objectives into technical specifications.123 To better orchestrate private regulatory capacity, the proper selection of regulatory intermediaries is essential.124 In that respect, this chapter argues that the EU rules could operate as principled meta-regulation of private regulatory initiatives, setting environmental objectives for the activities of the marine renewables sector and overseeing their performance while leaving the technical details to be developed by competent bodies, such as European standardisation bodies, or treaty bodies under regional sea agreements, such as the OSPAR Commission.125 As far as standard-setting is concerned, the EU Parliament has requested that the Commission establish criteria to evaluate their credibility, such as independence from industry, the inclusion of social and environmental interests in standard-setting, independent auditing and transparency.126 At the same time, effective orchestration of private regulation largely depends on monitoring and verification.

120 Axel Marx, ‘Public-private partnerships for sustainable development: exploring their design and its impact on effectiveness’ (2019) 11 Sustainability 1084. 121 Theo van den Hoogen et al, ‘The emergence and use of self-regulation in the European decision-making process: does it make a difference?’ (2010) 4 Legisprudence 123, 123–55. 122 Axel Marx and Jan Wouters, ‘Competition and cooperation in the market of voluntary sustainability standards’, UNFSS Discussion Paper No 135, 19. 123 Christoph Busch, ‘Self-regulation and regulatory intermediation in the platform economy’ in Marta Cantero Gamito and Hans-W Micklitz (eds), The Role of the EU in Transnational Legal Ordering: Standards, Contracts and Codes (Edward Elgar Publishing 2020) 127–9. 124 Rebecca Schmidt, ‘Protecting the environment through sports? Public–private cooperation for regulatory resources and international law’ (2018) 28 European Journal of International Law 1341, 1341. 125 Giannopoulos (n 69). 126 Enrico Partiti ‘Orchestration as a form of public action: the EU engagement with voluntary sustainability standards’ (2018) 25 European Law Journal 94, 105.

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The Example of the EU’s Co-regulatory Approach in the Offshore Safety Directive

The co-regulatory approach adopted in the context of offshore oil and gas activities could serve as a model for regulating marine renewables. The Offshore Safety Directive assigns the industry an instrumental role in shaping law-making and implementation processes. There is a significant amount of (sometimes de facto) delegated regulation by the industry, which defines its operational standards. In particular, the operators of offshore hydrocarbon installations must prepare and submit to the competent domestic authority a series of documents relating to risk management.127 Once activities have commenced, operators must ensure that their corporate prevention policy applies throughout the life-cycle of the installations by taking all necessary measures, including monitoring mechanisms.128 Instead of imposing prescriptive standards, the directive requires the adoption of a series of procedural measures to reduce risks. Under this goal-oriented approach, the industry becomes primarily responsible for the safety of its operations. Moreover, the directive contains ample references to ‘best practices and standards’.129 These norms regularly follow a performance-based approach.130 To disseminate such practices, the EU Commission has created the European Union Offshore Oil and Gas Authorities Group.131 Noticeably, compliance with best practices does not create a presumption of conformity with the environmental requirements of the directive and, hence, does not affect operators’ liability. Instead, operators must demonstrate the continuous performance of due diligence. Although the directive places significant responsibility upon the industry, State supervision of the industry’s normative developments and monitoring of their implementation remains essential. One of the most important lessons learned from the Deepwater Horizon blowout is that the existence of rules cannot by itself safeguard the safety of operations. Instead, it is the rigorous Art 11 Offshore Safety Directive. Ibid art 11(1) (h), (i) and (j). On the positive effects of its implementation, see EU Commission, ‘Assessing the Implementation of Directive 2013/30/EU of the European Parliament and the Council of 12 June 2013 on the safety of offshore oil and gas operations and amending Directive 2004/35/EC, COM(2020) 732 final. 129 EU Commission, ‘Best Available Techniques Guidance Document on Upstream Hydrocarbon Exploration and Exploitation’ [2019]. 130 Myron Nordquist and Aimee Fausser, ‘Offshore drilling in the Outer Continental Shelf: international best practices and safety standards in the wake of the Deepwater Horizon explosion and oil spill’ in Lodge and Nordquist (n 41) 115–45. 131 EU Commission, Decision of 19 January 2012 on setting up of the European Union Offshore Oil and Gas Authorities Group, OJ L2012/C. 127 128

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compliance with those rules by the industry that plays the key role.132 To that end, Member States must ensure that operators fully comply with the regulatory framework and with their individual commitments.133 Additionally, the directive envisages independent verification and continuous inspection of offshore installations to assess compliance by the operators.134

5.

CONCLUSIONS: WHAT ROLE FOR A CO-REGULATORY APPROACH IN REGULATING MARINE RENEWABLES?

Although EU environmental instruments apply to selected externalities of marine renewables, many issues are falling between the cracks. The anticipated recalibration of rules governing marine renewables could be the quintessential testing ground to examine the feasibility and limits of a co-regulatory approach in the context of regulatory uncertainty. Uncertainty manifests in various forms; for instance, in terms of environmental effects, technological and scientific developments, changing climate conditions. In light of the precautionary principle, the EU should not wait until emerging technologies are fully mature to cooperate with the relevant stakeholders. This chapter argues that, instead of ‘greenwashing’ the externalities of marine renewables, a hybrid regulatory model could facilitate innovation and address the risks of the expansion of the sector.135 Co-regulation can also promote inclusivity in the regulation of such activities, and thus foster the EU’s democratic legitimacy.136 Nonetheless, the potential ‘dark side’ of co-regulation cannot be overlooked. There remain many challenges in achieving an inclusive and transparent regulatory framework, given the discrepancy in the power dynamics between the involved stakeholders. Although enabling the participation of affected communities could increase the procedural legitimacy of co-regulation, there is little evidence that this would also benefit its output legitimacy. In other words, establishing a more inclusive framework will not necessarily deliver more effective environmental protection.137 In addition, the co-regulatory 132 Sergei Vinogradov, ‘The impact of the Deepwater Horizon: the evolving international, legal regime for offshore accidental pollution prevention, preparedness and response’ (2013) 44 Ocean Development & International Law 335, 350. 133 Art 8(1) Offshore Safety directive. 134 Ibid art 17, 21(3). 135 Fabrizio Caffagi, ‘Rethinking private regulation in the European regulatory space’ (2006) EUI Working Paper LAW 13. 136 Michèle Finck, ‘Digital regulation: designing a supranational framework for the platform economy’ (2017) LSE Legal Studies Working Papers No 15. 137 Suzanne Kingston and Edwin Alblas, ‘Of the people, by the people, for the people? The European Union’s experience with private environmental regulation and

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approach tests the limits of the EU’s constitutional framework, by raising issues of authority delegation.138 In terms of legitimacy and accountability, co-regulation triggers discussions about the extent of (judicial) control of private environmental standards.139 For instance, the lack of monitoring of voluntary sustainability standards for biofuels under the Renewable Energy Directive has attracted heavy criticism regarding potential greenwashing at the EU level.140 The design of hybrid arrangements plays a key role, as effective co-regulation requires the EU to take an active role to prevent merely shifting the responsibility to private actors. Unless meticulously designed and overseen by public regulators, private environmental standards can raise questions about their compatibility with the EU’s constitutional principles. Bearing these concerns in mind, this chapter posits that we need to further explore the advantages and limitations of co-regulation, instead of merely questioning its legitimacy. In that regard, empirical and ecological research are needed to shed light on the effectiveness of hybrid arrangements in regulating marine renewables within the multilevel EU legal order.

enforcement’ in Madeleine de Cock Buning and Linda Selden (eds), Private Regulation and Enforcement in the EU: Finding the Right Balance from a Citizen’s Perspective (Hart 2020) 189. 138 Megi Medzmariashvili, ‘Delegation of rulemaking power to European Standards organizations: reconsidered’ (2017) 44 Legal Issues of Economic Integration 353, 353–66. 139 Mariolina Elantonio, ‘Alternative forms of regulation: are they really better regulation’ (2017) 19 European Journal of Law Reform 141, 155–61. 140 ISEAL Alliance, ‘Private sustainability standards and the EU Renewable Energy Directive’, www​.isealalliance​.org/​impacts​-and​-benefits/​case​-studies/​private​ -sustainability​-standards​-and​-eu​-renewable​-energy accessed 15 May 2022.

11. Environmental litigation before regional economic courts in Africa and Latin America Sonja Kahl 1. INTRODUCTION1 Environmental litigation before international courts is becoming increasingly popular, and it is unlikely that this trend will lose momentum any time soon. Also, more and more often courts look to each other for guidance, rely on each other’s jurisprudence as persuasive authority and engage in judicial dialogue. However, most research on international environmental jurisprudence and litigation has focused on a few well-known courts, such as the International Court of Justice, the Dispute Settlement Mechanism of the World Trade Organization, the Court of Justice of the European Union (CJEU), and regional human rights courts. Regional tribunals of economic integration in Africa and Latin America have been largely neglected by scholarly literature – even as their dockets are growing.2 They are part of a phenomenon commonly referred to as ‘proliferation of courts’, which describes the dramatic increase of international judicial and quasi-judicial bodies especially between the 1980s and early 2000s.3 Most of these newly established tribunals operate with a territorial jurisdiction limited to a specific geographic area and are embedded in regional arrangements for economic and political cooperation and integration modelled This chapter is part of a larger research project currently in progress. Karen Alter and Liesbet Hooghe, ‘Regional Dispute Settlement’ in Tanja Börzel and Thomas Risse (eds), The Oxford Handbook of Comparative Regionalism (OUP 2016) 550; Karen Alter and Laurence Helfer, Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (OUP 2017) 13. 3 Since the 1940s, the number of international judicial bodies has gone from one (the Permanent Court of Arbitration) to more than 20 in 2014: see Karen Alter and Liesbet Hooghe, ‘Regional Dispute Settlement’ in Tanja Börzel and Thomas Risse (eds), The Oxford Handbook of Comparative Regionalism (OUP 2016) 541–2. 1 2

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after the European Union (EU).4 Their jurisdiction ratione personae is no longer limited to disputes between states, and instead also authorizes non-state actors to initiate litigation.5 These courts include, for example, the Tribunal of Justice of the Andean Community (1984), the Central American Court of Justice (1994), the East African Court of Justice (2001), the Court of Justice of the Economic Community of West African States (2001) and the Caribbean Court of Justice (2005). The goal of this chapter is to contribute to a better understanding of the prospects and challenges of environmental litigation before these lesser known courts. The fact that most of these subregional international courts are modelled after the CJEU opens the door for new strategies of environmental litigation based on administrative and community law principles. In the future, these approaches may provide an interesting alternative to the predominant human rights-based approach applied in international environmental litigation because they do not require accommodating the human rights discourse.6 Moreover, as the bulk of all environmental agreements is concluded on a regional level, and the development of international environmental governance is likely to continue through regional rather than global mechanisms,7 litigation before regional courts is likely to gain further relevance. This chapter explores the approaches taken by these courts by first outlining the main features of successful environmental litigation before the CJEU, and subsequently presenting two illustrative judgments from its ‘sibling’ courts in Africa and Latin America – the ANAW v Tanzania case8 before the East

4 Karen Alter, ‘The Multiplication of International Court and Tribunals after the End of the Cold War’ in Cesare Romano et al (eds), The Oxford Handbook of International Adjudication (OUP 2014) 65–73; Geert De Baere, Anna-Luise Chane and Jan Wouters, ‘International Courts as Keepers of the Rule of Law: Achievements, Challenges, and Opportunities’ (2016) 48 NYU J Int’l L & Pol 715, 729. 5 Karen Alter, The New Terrain of International Law: Courts, Politics, Rights (PUP 2014) 3–4. 6 For example, Shelton doubts that environmental protection can ‘be wholly incorporated into the human rights agenda without deforming the concept of human rights and distorting its program’: Dinah Shelton, ‘Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized’ (2006) 35 Denv J Int’l L & Pol’y 129, 169–70. 7 See Peter Haas, ‘Regional Environmental Governance’, in Tanja Börzel and Thomas Risse (eds), The Oxford Handbook of Comparative Regionalism (OUP 2016) 431, 438; Jonas Ebbesson, ‘Public Participation’, in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 702. 8 Reference No 9 of 2010 African Network for Animal Welfare (ANAW) v Attorney General (AG) of Tanzania [2011] EACJ 9 (on preliminary objections); Appeal No 3 of 2011 AG of Tanzania v ANAW [2012] EACJ (on preliminary objections); Reference No

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African Court of Justice in 2014, and the FONARE v Costa Rica case9 before the Central American Court of Justice in 2012. In both cases, the courts dealt with infringement procedures that were initiated by NGOs relating to the construction of highways in environmental conservation areas.

2.

ENVIRONMENTAL LITIGATION BEFORE THE COURT OF JUSTICE OF THE EUROPEAN UNION

The CJEU is the chief judicial authority overseeing the uniform application and interpretation of the law of the European Union. The European Union is a political and economic regional organization comprising 27 member states. Initially created as a common market for coal and steel in 1952, the EU has continuously expanded its competences and now regulates a wide set of issues, including customs, competition, monetary policy, consumer protection, security, justice, development cooperation and humanitarian aid, transport, technological research and space exploration and foreign and defence policy, as well as environment, agriculture and fisheries, energy and aspects of public health.10 The law of the European Union consists of the treaties between the member states establishing the EU,11 but also secondary law in the form of directives, regulations and decisions issued by the organs of the EU. The main task of the CJEU is to supervise the implementation of and adherence to EU law by the organs of the community and the member states, and to ensure the uniform application of EU law in all member states. As more and more matters were being regulated by EU law, the jurisdiction of the CJEU grew accordingly. Several key types of procedure enable the CJEU to fulfill its tasks. First, in an action for annulment12 or an action for a failure to act,13 the Court may review the legality of an act or failure to act of an EU organ or institution. Community rules, acts and omissions can be challenged by directly affected individuals and corporate bodies, but also by member states or another EU

9 of 2010 ANAW v AG of Tanzania [2014] EACJ 50 (on merits); Appeal No 3 of 2014 AG of Tanzania v ANAW [2014] EACJ 56 (on merits). 9 12-06-12-2011 Asociación Foro Nacional de Reciclaje (FONARE) and Fundación Nicaragüense para el Desarrollo Sostenible v Costa Rica [2012] CACJ. 10 In many of these fields, the EU shares its competences with the member states. 11 Such as the Consolidated Version of the Treaty establishing the European Community [2002] OJ C325/1, its amending treaties, and additional protocols. 12 Consolidated Versions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1, arts 258–60, 263, 265. 13 TFEU, art 265.

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institution. Second, in an infringement procedure,14 the CJEU enforces member state compliance with European law. Proceedings can be initiated against a member state that does not comply with EU law by another member state or, more commonly, the European Commission, which is an independent executive organ of the EU responsible for proposing legislation and ensuring the implementation of EU law. It is important to note that private actors and NGOs cannot initiate an infringement procedure before the CJEU. Third, in the preliminary reference procedure,15 national courts are allowed (and sometimes obliged) to refer abstract questions on the interpretation of EU law to the CJEU, which then issues a ‘preliminary ruling’. The national court is bound by the interpretation given and can apply it to a specific dispute before it. The CJEU’s contribution to the development, clarification and enforcement of European environmental law is unprecedented and widely recognized. Its case law concerning environmental issues is ‘quantitatively and qualitatively vast’, with more than 1,300 judgments relating to environmental matters by the end of 2020.16 When compared to the conservative environmental jurisprudence of the European Court of Human Rights, the EU’s approach towards sustainable development has been called ‘a much more promising road to travel’, and its impact on the environment ‘far greater’.17 The CJEU routinely deals with environmental matters in two main ways. On one hand, it has contributed to the clarification, interpretation and development of European environmental law through preliminary reference procedures, and it has defined important environmental law concepts in numerous cases before it. For example, the CJEU has been called to define the concept of ‘waste’ in an EU directive18 and determine whether an item was subject to waste treat-

TFEU, arts 258–60. TFEU, art 267. 16 With more than 700 judgments documented up to 2006, see Francis Jacobs, ‘The Role of the European Court of Justice in the Protection of the Environment’ [2006] 18(2) JEL 185, 185 https://​academic​.oup​.com/​jel/​article/​18/​2/​185/​407465 accessed 30 October 2021, and 675 sanctions procedures following infringement judgments concerning the environment alone between 2007 and 2020, see Directorate-General for the Environment (EU Commission), ‘Legal Enforcement Statistics on Environmental Infringements – Article 260 (previously 228) Cases’ https://​ec​.europa​.eu/​environment/​ legal/​law/​statistics​.htm accessed 1 April 2022. 17 Jonathan Verschuuren, ‘Contribution of the Case Law of the European Court of Human Rights to Sustainable Development in Europe’ in Werner Scholtz and Jonathan Verschuuren (eds), Regional Environmental Law (Edward Elgar Publishing 2015) 385. 18 Council Directive 75/442/EEC of 15 July 1975 on waste [1975] OJ L194/39 and Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste [1991] OJ L 78/32, both no longer in force since 16 May 2006. 14 15

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ment, processing and recycling regulations,19 or to provide guidance on the criteria fixing the closing date for the hunting of migratory birds, which was also foreseen in an EU directive.20 The CJEU also forced the amendment of the German Environmental Appeals Act (Umweltrechtsbehelfsgesetz) (2006), which imposed restrictions on NGO access to justice that were contrary to EU law, following several preliminary reference rulings.21 On the other hand, and perhaps even more importantly, the European Commission has initiated numerous infringement procedures before the CJEU against member states that were breaching European environmental law. The high number of infringement procedures handled by the Commission’s Directorate-General for the Environment are a mark of the Commission’s commitment to implementing the community’s environmental law.22 In 2020, more than 20 per cent of all infringement cases before the Court related to the environment.23 The CJEU has repeatedly issued infringement decisions against member states whose domestic legislation was inconsistent with EU environmental law,24 or who had failed to completely and correctly transpose EU 19 Joined cases C-304/94 Euro Tombesi and Andino Tombesi, C-330/94 Roberto Santella, C-342/94 Giovanni Muzi and others and C-224/95 Anselmo Savini [1997] ECR I-03561 (on industrial byproducts destined to be used as fuel); Case C-9/00 Palin Granit Oy and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-03533 (on stone resulting from stone quarrying); Case C-444/00 Mayer Parry Recycling Ltd v Environment Agency and others [2003] ECR I-06163 (on scrap metal); and C-114/01 AvestaPolarit Chrome Oy [2003] ECR I-08725 (on leftover rocks from the operation of a mine). 20 Case C-435/92 Association pour la Protection des Animaux Sauvages and others v Préfet de Maine-et-Loire and Préfet de Loire-Atlantique [1994] ECR I-00067; for other preliminary rulings concerning the protection of birds, see for example: Case C-118/94 Associazione Italiana per il World Wildlife Fund and others v Regione Veneto [1996] ECR I-01223; Case C-149/94 Didier Vergy [1996] ECR I-00299; and Case C-44/95 Regina v Secretary of State for the Environment [1996] ECR I-03805. 21 Case C-115/09 Bund für Umwelt und Naturschutz Deutschland v Bezirksregierung Arnsberg [2011] ECR I-0367, and Case C-72/12 Gemeinde Altrip and others v Land Rheinland-Pfalz [2013] (no ECR reference); see also Sabine Schlacke and Dominik Römling, ‘Umwelt-Rechtsbehelf’ in Sabine Schlacke (ed), Umweltrecht (Nomos, 7 ed, 2019), 478–81. 22 In 2020, the Commission was handling 451 member state infringements concerning the environment, see Directorate-General for the Environment (EU Commission): ‘Open DG ENV infringements’ https://​ec​.europa​.eu/​environment/​legal/​law/​statistics​ .htm accessed 1 April 2022. 23 Daniele De Bernardin, ‘EU infringement procedures: July 2020 update’, European Data Journalism Network (22 July 2020) https://​www​.eu​ropeandata​ journalism​.eu/​eng/​News/​Data​-news/​EU​-infringement​-procedures​-July​-2020​-update accessed 1 April 2022. 24 See for example Case C-137/14 European Commission v Germany [2015] (no ECR reference), concerning the inconsistency of the German Environmental Appeals Act (2006) with EU law, see footnote 20.

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environmental directives into national law (directives, unlike regulations, are not immediately enforceable but have to be transposed into national law by the member states).25 Often, the obligations foreseen in the directives are linked to the adoption of technical and environmental quality standards. For example, the Court held in Case C-278/01 that Spanish inshore bathing water did not meet the quality standards set by the limit values established by a directive.26 The CJEU has also supervised compliance with EU environmental law in specific local incidents or situations, such as waste discharges into the San Rocco valley river in Italy,27 the failure to classify the Spanish Santoña marshes28 and the French Basses Corbières29 as special protection areas, and disturbances of sea turtles in Greece during the breeding period.30 Furthermore, the Court has imposed fines and penalty payments against member states who did not comply with its judgments.31 The basic template of the CJEU and its procedures has been mimicked by many regional courts, with approximately half of regional international courts established after the Cold War representing institutional copies of it.32 Whereas in some cases there has been an almost wholesale adoption of the CJEU’s design (such as the Tribunal of Justice of the Andean Community), other regional organizations only emulated the most important features (such as the Caribbean or ECOWAS Courts of Justice).33 Moreover, some courts 25 See for example Case C-133/94 European Commission v Belgium [1996] ECR I-02323, concerning the incorrect transposal of a directive relating to the environmental assessment of construction projects into Belgian law, or Case C-384/97 European Commission v Greece [2000] ECR-03823, concerning the incorrect transposal of a directive relating to aquatic pollution by dangerous substances into Greek law. 26 Case C-278/01 European Commission v Spain [2003] ECR I-14141, relating to Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water [1975] OJ L31/1, no longer in force since 2014. In another example, Case C-60/01 European Commission v France [2001] ECR I-05679, the CJEU held that France had failed to ensure that French incinerators are operated according to the relevant technical standards established by EU directives. 27 Case C-365/97 European Commission v Italy [1999] ECR I-07773. 28 Case C-355/90 European Commission v Spain [1993] ECR I-04221. 29 Case C-374/98 European Commission v France [2000] ECR I-10799. 30 Case C-103/00 European Commission v Greece [2000] ECR I-01147. 31 Case C-387 European Commission v Greece [2000] ECR I-05047; Case C-278/01 European Commission v Spain [2003] ECR I-14141; Case C-304/02 European Commission v France [2005] ECR I-06263. 32 Karen Alter, ‘The Global Spread of European Style International Courts’ (2012) 35(1) West Europ Pol’s, 135, 135; Karen Alter, ‘The Multiplication of International Court and Tribunals after the End of the Cold War’ in Cesare Romano et al (eds), The Oxford Handbook of International Adjudication (OUP 2014) 68, 73. 33 Thomas Risse, ‘The Diffusion of Regionalism’ in Tanja Börzel and Thomas Risse (eds), The Oxford Handbook of Comparative Regionalism (OUP 2016) 98–101.

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for regional integration in Africa (such as the East African or the ECOWAS Courts of Justice) have extended their mandate to cover human rights matters, to the point that they currently play an important role in the protection of human rights.34 It is especially interesting to note that although many regional organizations in Africa and Latin America lack an independent executive authority with the powers of the European Commission that could initiate proceedings against member states, many of them grant individuals and NGOs much broader access to their courts than the CJEU.35 Therefore, it is interesting to explore whether and to what degree the type of environmental litigation that has been successful before the CJEU can be implemented before its ‘sibling’ courts in Africa and Latin America. This chapter will focus on the infringement procedure and provide two examples from subregional courts in Africa and Latin America, both dealing with the construction of a highway through a nature reserve. Nonetheless, it is important to note that other types of proceedings could also play an increasingly relevant role in the clarification, development and enforcement of regional environmental law. For instance, the Colombian Consejo de Estado has recently started referring preliminary references to the Tribunal of Justice of the Andean Community, asking the Tribunal to clarify notions of the community’s Policy to Combat Illegal Mining.36

3.

ENVIRONMENTAL LITIGATION BEFORE THE EAST AFRICAN COURT OF JUSTICE

The East African Community (EAC) is an intergovernmental organization composed of six countries in Eastern Africa – Burundi, Kenya, Rwanda, South Sudan, Tanzania and Uganda – with its headquarters in Arusha, Tanzania. It was founded in 1967 and resurrected in 2000 after its collapse in 1977. The objectives of the EAC include improved political, economic, social, cultural and judicial cooperation through the successive establishment of a customs union, a common market, a monetary union, and ultimately a political federa34 Lucyline Nkatha Murungi and Jacqui Gallinetti, ‘The Role of Sub-Regional Courts in the African Human Rights System’ (2010) 13 SUR – Int’l J on Hum Rts 119, 119. 35 Mariolina Eliantonio and Haakon Roer-Eide, ‘Regional Courts and Locus Standi for Private Parties: Can the CJEU Learn Something from the Others’ (2014) 13 Law & Prac Int’l Cts & Tribunals 27. 36 Case 575-IP-2015 Medidas de Prevención y control de minería ilegal [2017] GOAC 2968 and Case 669-IP-2015 Decomiso, incautación, destrucción e inutilización de maquinaria pesada [2017] GOAC 2969 concerning Decision 774 of the Andean Counsel of Foreign Ministers of 30 July 2012 on the Andean Policy to Combat Illegal Mining [2012] GOAC 2103.

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tion.37 The common market was established in 2010, and in 2013, in an additional protocol,38 the member states outlined their plans to create a monetary union within ten years. The timeframe was set for review in 2019.39 Article 9 of the EAC Treaty names the organs and institutions of the Community, and it is evident that the institutional structure of the EAC strongly resembles that of the EU. The Summit, which sets the general political directions and priorities of the community by bringing together the member states’ heads of government, is equivalent to the European Council.40 Central to legislation are the EAC Council, which gathers the ministers of member states’ governments and is similar to the Council of the EU,41 and the East African Legislative Assembly, which resembles the European Parliament.42 Together, both organs can issue legislative acts, but also directives, regulations and decisions similar to the EU.43 The Secretariat may be compared to the European Commission, as it is the executive organ of the community and tasked with ensuring that member states properly implement community law.44 The East African Court of Justice (EACJ) was established in 2001 and, similarly to the CJEU, it is tasked with the interpretation and application of community law, and supervision of compliance with it.45 Therefore, unsurprisingly, the procedures before the EACJ are parallel to those before the CJEU. Among other things, it is authorized to issue preliminary rulings when a national court raises a question concerning the interpretation and application of community law46 (by 2017, however, the preliminary reference procedure

37 Treaty for the Establishment of the East African Community (adopted 30 November 1999, entered into force 7 July 2000) 2144 UNTS 37437, as amended (EAC Treaty), art 5(1), (2). 38 Protocol on the Establishment of the East African Community Common Market (adopted 20 November 2009, entered into force 1 July 2010); Protocol on the Establishment of the East African Community Monetary Union (adopted 30 November 2013, entered into force on 1 February 2015). 39 James Anyanzwa, ‘EAC End-year Meet to Review Monetary Union Roadmap’, The East African (20 July 2021) www​.theeastafrican​.co​.ke/​tea/​business/​eac​-end​-year​ -meet​-to​-review​-monetary​-union​-roadmap​-3479780 accessed 1 April 2022. 40 EAC Treaty, arts 10–12; TEU, art 15; TFEU, arts 235–6. 41 EAC Treaty, arts 13–16; TEU, art 16; TFEU, arts 237–43. 42 EAC Treaty, arts 48–65; TEU, art 14; TFEU, arts 223–34. 43 EAC Treaty, art 16; TFEU, art 288. Nonetheless, the most common secondary law source in the EAC is the act, which still requires ratification by the member states. The role of the other instruments is not yet entirely clear. 44 EAC Treaty, arts 66–73; TEU, art 17; TFEU, arts 244–50. 45 EAC Treaty, art 27; TEU, art 19. 46 EAC Treaty, art 34; TFEU, art 267.

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had only been used once47), and it may issue judgments on the infringement of community law by any action taken by the member states or community institutions.48 It is important to note that, unlike before the CJEU, the infringement procedure against member states before the EACJ may be initiated by individuals and NGOs in addition to other member states and the Secretary. Article 30 of the EAC Treaty reads: [A]ny person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.

The consequence is that it is up to individuals and civil society organizations to take up the watchdog role which the Commission plays in the EU and monitor member state compliance with community law, especially since the Secretariat has not filed any cases against member states. It should be mentioned that legal and natural persons must initiate infringement proceedings within two months of the enactment or publication of the challenged act, or in the absence thereof, on the day on which it came to their knowledge.49 The ANAW v Tanzania case50 is a prime example of an NGO initiating environmental litigation before the EACJ. The case concerned the construction of a highway through the Serengeti National Park by Tanzania, with serious consequences for the environment. The applicant, which described itself as a ‘a Charitable Pan-African animal welfare and community-centred organization registered as a Non-Governmental Organisation in Kenya’,51 alleged the violation of several norms in the EAC Treaty.52 It is worth noting that none of these provisions include any technical regulations; rather, they consist of generic rules establishing the general duties for member states to protect the environment, conserve natural resources and act in a sustainable way: Art. 114(1) EAC Treaty: States agree to take concerted measures to foster co-operation in the joint and efficient management and the sustainable utilisation of natural resources within the Community for the mutual benefit of the Partner States. In particular, the Partner States shall: 47 Emmanuel Ugirashebuja, ‘Preliminary References under EAC Law’ in Emmanuel Ugirashebuja et al (eds), East African Community Law: Institutional, Substantive and Comparative EU Aspects (Brill 2017), 265, 273. 48 EAC Treaty, arts 28–30; TFEU, arts 258–60. 49 EAC Treaty, art 30(2). 50 See footnote 7. 51 Reference No 9 of 2010 ANAW v AG of Tanzania [2014] EACJ 50, para 2. 52 Ibid, paras 13, 59.

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take necessary measures to conserve their natural resources; co-operate in the management of their natural resources for the conservation of the eco-systems and the arrest of environmental degradation; and adopt common regulations.

Art. 5(3)(c): [T]he Community shall ensure: […] the promotion of sustainable utilisation of the natural resources of the Partner States and the taking of measures that would effectively protect the natural environment of the Partner States. Art. 111(2): Action by the Community relating to the environment shall have the following objectives: (a) (b) (c)

to preserve, protect and enhance the quality of the environment; to contribute towards the sustainability of the environment; to ensure sustainable utilisation of natural resources like lakes, wetlands, forests and other aquatic and terrestrial ecosystems; and (d) to jointly develop and adopt water resources conservation and management policies that ensure sustenance and preservation of ecosystems.

First, the EACJ established that the applicants had legal standing, and that it had jurisdiction to enforce Art. 114 of the EAC Treaty and the power to issue a permanent injunction against a sovereign state.53 Turning to the merits, the EACJ examined whether the construction of the highway threatened to cause irreversible damage to the Serengeti Park and thereby infringed the provisions of the EAC Treaty.54 Relying on experts called by the parties and a UNESCO report, the Court eventually sided with the applicants, finding that ‘if the road project is implemented as originally planned, the effects would be devastating both for the Serengeti and neighbouring Parks like the Masai Mara in Kenya and it behoves us to do the right thing and stop future degradation without taking away the Respondent’s mandate towards economic development of its people’.55 It therefore declared that ‘the proposed action by the Respondent to construct a road of bitumen standard across the Serengeti National Park is unlawful and infringes Articles 5(3)(c), 8(1)(c), 111(2) and 114(1) of the Treaty’, and issued a permanent injunction halting the construction works.56

53 Reference No 9 of 2010 African Network for Animal Welfare (ANAW) v Attorney General (AG) of Tanzania [2011] EACJ 9; upheld in: Appeal No 3 of 2011 AG of Tanzania v ANAW [2012] EACJ. 54 Reference No 9 of 2010 ANAW v AG of Tanzania [2014] EACJ 50, paras 67–75. 55 Ibid, para 82. 56 Ibid, para 86.

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The judgment was upheld in appeal, with the Appellate Division finding strong words in support of the First Instance decision: At the heart of this Reference (the first of its kind in this Regional Court), was the delicate and precarious balance; pitting the aspirations of the State for accelerated socio-economic development of the Country, against the concerns of the Civil Society for the conservation, preservation and protection of the Natural Environment. At the centre of this epic battle, was the fate of the iconic Serengeti Nature Reserve, straddling the International borders of Kenya and Tanzania.57

The Appellate Division also took note of the public interest dimension of the case, acknowledging that the applicants ‘brought the Reference […] not out of any wish for personal, corporate, or private gain; but out of the public spirited interest of the noblest kind – namely conservation, preservation and protection of a natural resource which (in this particular case), is truly a gem of a heritage, one-of-a-kind for all mankind’.58 The progressive development and growing body of environmental law in the EAC, which also includes increasingly technical guidelines,59 opens new possibilities to make environmental litigation before the EACJ more sophisticated. Moreover, international environmental law could also play a role before the EACJ in the future. It is true that neither the First Instance nor the Appellate Division took into account international environmental law, instead taking seriously their role as organs of a community for regional integration and only examining the alleged violation of the EAC Treaty. Nonetheless, the Appellate Division noted that ‘even if the Trial Court had in fact considered aspects of […] International Instruments […] we, for our part, would not have been unduly alarmed. By being signatories to these other International Conventions and Declarations, the EAC Partner States, do subscribe to the various standards, norms and values of those Conventions’.60 ANAW v Tanzania is a landmark case and was chosen for this chapter due to its illustrative nature. Nonetheless, the fact that three other environment-related Appeal No 3 of 2014 AG of Tanzania v ANAW [2014] EACJ 56, para 2. Ibid, para 81. 59 To provide a few examples: the EAC Standardisation, Quality Assurance, Meteorology and Testing Act of 1 August 2007 [2007] EACG No 2 http://​repository​ .eac​.int/​handle/​11671/​24106; the Lake Victoria Transport Act of 18 July 2008 [2008] EACG No 7 http://​repository​.eac​.int/​handle/​11671/​24091; the Community Protocol on Sanitary and Phytosanitary (SPS) Measures (adopted 12 July 2013, entered into force 9 September 2021) www​.eac​.int/​documents/​category/​sanitary​-and​-phytosanitary​ -sps​-measures; the Harmonized Guidelines for the Registration of Biopesticides and Bio Control Agents for Plant Protection of 28 November 2019 [2019] www​.eac​.int/​ documents/​category/​pesticides; all sites accessed 1 April 2022. 60 Appeal No 3 of 2014 AG of Tanzania v ANAW [2014] EACJ 56, para 48. 57 58

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cases are currently pending before the EACJ indicates that civil society places great hopes in the Court as a forum of redress. The first case was filed in 2017 by the Maasai indigenous community against an eviction from their ancestral land. The Court has not yet adopted a decision on the merits, but in 2018 it issued an interim injunction restraining the state from evicting the community.61 A second case is pending against Uganda and concerns the approval of a project that entails the use of the Bugoma forest for the growth of sugar cane, with the applicants alleging that the project has serious adverse effects on the environment.62 The third case is against Tanzania and Uganda and relates to the approval of the East African Crude Oil Pipeline without a proper environmental impact assessment.63 The handling of the cases has been delayed by the growing case docket of the Court and the change of the bench. Moreover, it appears that the Court is treading very carefully in these politically charged cases. According to Eron Kiiza, an attorney in the Bugoma Forest case, ‘the newly constituted panel may still be feeling [its] way’.64

4.

ENVIRONMENTAL LITIGATION BEFORE THE CENTRAL AMERICAN COURT OF JUSTICE

The Central American Court of Justice (CACJ) (Corte Centroamericana de Justicia) is the chief judicial organ of the Central American Integration System (Sistema de la Integración Centroamericana, SICA), which comprises Belize, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua and Panama. According to its founding treaty, the Protocol of Tegucigalpa (1991),65 the objectives of the SICA include cooperation for regional peace, political freedom, democracy and economic development.66 In the Protocol of Guatemala (1993), the member states agreed to cooperate in

61 Application No 15 of 2017 Ololosokwan Village Council and Ors. v AG of Tanzania [2018] EACJ 89. 62 Reference No 35 of 2020 The Environment Shield Limited and Ors. v Uganda, filed before the EACJ First Instance Division on 14 October 2020. 63 Reference No 29 of 2020 (arising from Reference No 39 of 2020) Centre for Food and Adequate Living Rights (CEFROHT) Limited and Ors v Uganda, Tanzania and the EAC General Secretary, filed before the EACJ First Instance Division on 6 November 2020. 64 Interview with Eron Kiiza, CEO of The Environment Shield Limited, Uganda (online, 9 March 2022). 65 Protocol of Tegucigalpa modifying the Charter of the Organization of Central American States of 1962 (adopted 13 December 1991, entered into force 23 July 1993) 1695 UNTS 8048, as amended (Protocol of Tegucigalpa). 66 Protocol of Tegucigalpa, art 3.

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order to gradually and progressively achieve the Central American Economic Union.67 The institutional structure of the SICA has clearly been inspired by the European Union.68 Its organs include the Meeting of the Presidents, which brings together the member states’ heads of government in order to establish the general political priorities and directions of the community;69 the Council of Ministers, in which the respective ministers of the member states elaborate sector-specific policies;70 and the Secretary General and the Executive Committee as executive organs.71 It also includes the Central American Parliament (Parlacen) as a legislative organ directly elected by Central American citizens, although its functions are mostly consultative.72 Member states have concluded several agreements concerning the environment in the context of SICA.73

67 Protocol to the General Treaty of Central American Economic Integration of 1960 (adopted 29.10.1993, entered into force 17 August 1995) 1887 UNTS 6543 as amended (Protocol of Guatemala), art 1. 68 See for instance: María Ángeles Cano Linares, ‘La Corte Centroamericana de Justicia: Un órgano único con diversidad de competencias’ in Carlos Fernández Liesa (ed), Tribunales Internacionales y Espacio Iberoamericano (Editorial Aranzadi 2009) 114. 69 Protocol of Tegucigalpa, arts 12–15. 70 Protocol of Tegucigalpa, arts 12, 16–23. 71 Protocol of Tegucigalpa, arts 12, 24–28. 72 Constitutive Treaty of the Central American Parliament and Other Political Instances (adopted 02 October 1987, entered into force 1 May 1990) 1777 UNTS I-30999, art 5; see also César Ernesto Salazar Grande and Enrique Napoleón Ulate Chacón, Manual de derecho comunitario centroamericano (Imprenta y Offset Ricaldone, 2nd ed, 2013) 98–9. 73 Examples include the Central American Convention for the Protection of the Environment (adopted 12 December 1989, entered into force 14 June 1990) 2278 UNTS 40570; the Regional Agreement for the Conservation of the Biodiversity and the Protection of Priority Wilderness Areas in Central America (adopted 05 June 1992, entered into force 31 December 1994) UNEP Register 2005, 486; the Regional Agreement on Transboundary Movement of Hazardous Waste (adopted 11 December 1992, entered into force 17 November 1995) 177 UNEP Register 2005, 490; the Regional Convention for the Administration and Conservation of Natural Forestry Ecosystems and Development of Forestry Plantations (adopted 29 October 1993, entered into force 15 October 1999) 2101 UNTS 36505; the Alliance for the Sustainable Development of Central America, Declaration adopted on the Central American Environment Summit (12 October 1994), reprinted in the OHCHR compilation of documents adopted by IOs aimed at promoting democracy, 198; and the New Convention establishing the Coordination Centre for the Prevention of Natural Disasters in Central America (CEPREDENAC) (adopted 3 September 2009, entered into force 12 July 2007) 2476 UNTS 44468.

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The establishment of the CACJ was already provided for by Art. 12 of the Protocol of Tegucigalpa, but its structure, proceedings and functioning were regulated in the Statute Establishing the Court (1992).74 The CACJ became operative in 1994. It is the ‘principal and permanent judicial organ of the SICA’ and, like its siblings in Europe and Eastern Africa, it will supervise the correct interpretation and application of the community’s law.75 Article 22 of the Statute features the procedures typical for a court of regional integration – such as infringement,76 annulment77 and preliminary reference78 proceedings – but also special procedures that are unique to the CACJ, providing it with advisory,79 international,80 arbitral81 and even constitutional82 functions. This multitude of functions has led commentators to argue that ‘[the Court’s] functions are probably too extensive, particularly for a relatively young court in a turbulent region’.83 The infringement procedure can be initiated not only by community institutions and other member states, but also by individuals and NGOs. Pursuant to Art. 22(c) of the Statute of the Court, the Court may ‘decide, at the request of any interested party, whether any legal, regulatory, administrative or other provision issued by a State affects the Agreements, Treaties and any other regulation of Central American Integration Law, or the Agreements or resolutions of its Organs or Organizations’.84

74 Convention on the Statute of the Central American Court of Justice (adopted 10 December 1992, entered into force 2 February 1994) 1821 UNTS 31191 (Statute of the CACJ). 75 Protocol of Tegucigalpa, art 12; Statute of the CACJ, art 1. 76 Statute of the CACJ, art 22(c). 77 Ibid, art 22(b) and (g). 78 Ibid, arts 22(k), 24. 79 Ibid, arts 22(d) and (e), and 23. 80 Ibid, art 22(a) and (h). 81 Ibid, art 22(ch). 82 Ibid, art 22(f). 83 Cesare Romano, ‘Trial and Error in International Judicialization’ in Cesare Romano et al (eds), The Oxford Handbook of International Adjudication (OUP 2014) 130; see also Katrin Nyman-Metcalf and Ioannis Papageorgiou, Regional Integration and Courts of Justice (Intersentia Publishers 2005) 55–6. 84 Own translation, original text: ‘Conocer, a solicitud de cualquier interesado, acerca de las disposiciones legales, reglamentarias, administrativas o de cualquier otra clase dictadas por un Estado, cuando afecten los Convenios, Tratados y de cualquier otra normativa del Derecho de la Integración Centroamericana, o de los Acuerdos o resoluciones de sus Organos u Organismos.’

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It is unclear whether and to what degree natural and legal persons must be aggrieved by the act allegedly in breach of community law.85 In any case, in the FONARE v Costa Rica case of 2012,86 the CACJ granted very broad legal standing to private parties. In the FONARE case, two Nicaraguan NGOs initiated infringement proceedings pursuant to Art. 22(c) of the Statute Establishing the Court against Costa Rica, challenging the state’s construction of a highway along the San Juan river, an important swampland and ecosystem, without proper environmental impact assessment, public participation or notification of the neighbouring country, Nicaragua. The Court declared itself competent to hear cases related to the protection of the environment by virtue of Art. 3(b) of the Protocol of Tegucigalpa, which includes the promotion of sustainable development and the protection of the environment as goals of the SICA.87 Remarkably, it did not examine the legal standing of the NGOs, thereby opening the door for public interest litigation in the Central American system. In its decision on the merits, the Court recognized the importance of the protected areas surrounding the San Juan river88 and found that Costa Rica’s actions had severely damaged the protected ecosystems.89 It concluded that by constructing the highway without proper environmental impact assessment or cooperation with Nicaragua, despite the risks and dangers for the environment, Costa Rica had violated Arts. 3 and 4 of the Protocol of Tegucigalpa and several Central American agreements concluded in the context of SICA.90 Interestingly, the Court also found that Costa Rica had infringed general international environmental law, such as the Ramsar Convention.91 Nonetheless, and perhaps surprisingly, the Court abstained from determining any specific remedies as it found that it lacked the necessary evidence to quantify the environmental damage caused.92

85 Mariolina Eliantonio and Haakon Roer-Eide, ‘Regional Courts and Locus Standi for Private Parties: Can the CJEU Learn Something from the Others’ (2014) 13 Law & Prac Int’l Cts & Tribunals 27, 39–40, 51–2. 86 See footnote 8. 87 12-06-12-2011 Asociación Foro Nacional de Reciclaje (FONARE) and Fundación Nicaragüense para el Desarrollo Sostenible v Costa Rica [2012] CACJ, Considerando IV. 88 Ibid, Considerandos XI–XIII. 89 Ibid, Considerandos XXVII. 90 Ibid, Por lo tanto – Sexto. 91 Ibid, Por lo tanto – Sexto. Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention) (opened for signature 2 February 1971, entered into force 21 December 1975) 996 UNTS 245. 92 Ibid, Por lo tanto – Noveno.

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The core problem of the case lay in the fact that, although it had ratified the Protocol of Tegucigalpa, Costa Rica had not ratified the Statute Establishing the Court. In fact, of the eight signatory states of the Protocol, only four have ratified the Statute (El Salvador, Guatemala, Honduras and Nicaragua). In spite of this, the Court declared itself competent to hear the case, arguing that by ratifying the Protocol of Tegucigalpa and becoming a member of SICA, Costa Rica had submitted to the jurisdiction of the Court, and that a separate ratification of the Statute was not necessary.93 As a response, Costa Rica, which had already refused to participate in the proceedings before the Court and ignored the precautionary measures issued by it, claimed that it did not recognize the Court’s jurisdiction, and expressly rejected the decision.94 However, the construction project was not implemented by Costa Rica, which could also have been a result of mounting pressure from civil society. It is therefore not necessarily the obstructive reaction of Costa Rica that discouraged other litigants from bringing environmental cases to the Court: there appears to be a general lack of awareness in civil society regarding the Court and its activities.95 Unlike its East African counterpart, which has actively made connections in the NGO and civil society sector, there appear to have been few to no such initiatives from the CACJ, and the Court’s location in Nicaragua, an increasingly authoritarian regime, may contribute to its low popularity. Indeed, FONARE v Costa Rica was not perceived as a case of public interest litigation in the region, but rather as an attempt by Nicaragua to sabotage the economic development of Costa Rica, that is, as an intergovernmental dispute even though it was brought by NGOs.96 Only if further environmental cases are filed will it become clear whether there is potential for environmental

Ibid, Considerandos II–VII. ‘Costa Rica no acatará orden de Corte Centroamericana por litigio de carretera’ La Información (18 January 2012) www​.lainformacion​.com/​espana/​costa​ -rica ​ - no ​ - acatara ​ - orden​ - de​ - corte​ - centroamericana​ - por ​ - litigio ​ - de ​ - carretera ​ _ g6W​ 8qai4K3fSIKQvthnBI4/​; ‘La Corte Regional condena a Costa Rica por daños al río San Juan’, FAO News (4 July 2012) www​.fao​.org/​in​-action/​agronoticias/​detail/​es/​c/​ 510281/​accessed 1 April 2022. 95 See Katrin Nyman-Metcalf and Ioannis Papageorgiou, Regional Integration and Courts of Justice (Intersentia Publishers 2005) 103; Luis Fernández Molina, ‘La Corte Centroamericana de Justicia y el Parlacen’, La Hora (30 July 2019) https://​lahora​.gt/​la​ -corte​-centroamericana​-de​-justicia​-y​-el​-parlacen/​ accessed 1 April 2022). 96 This becomes visible from numerous newspaper articles on the topic, which depicted the dispute as a ‘conflict between Costa Rica and Nicaragua’; see, for instance, ‘Disputa por carretera, nuevo capítulo en el conflicto entre Costa Rica y Nicaragua’, El Nuevo Diario (23 December 2011) www​.elnuevodiario​.com​.ni/​nacionales/​236719​ -disputa​-carretera​-nuevo​-capitulo​-conflicto​-costa​-r/​ accessed 1 April 2022. 93 94

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litigation before the CACJ. In any case, with FONARE v Costa Rica, the Court has shown a clear willingness to step up in environmental matters. Finally, it should be noted that, pursuant to relevant community law, the decisions of both the EACJ Appellate Division and the CACJ are final, binding and not subject to appeal.97 Moreover, according to generally acknowledged principles of international law, member states cannot rely on domestic law to avoid their duty to comply with international law.98 The EAC Treaty also expressly states that the decisions of the Community court on the interpretation and application of the Treaty have precedence over decisions of national courts.99 This being said, it must be emphasized that the relationship between regional international tribunals and domestic courts is often complicated and requires further research. For instance, whereas the CACJ requires individuals to exhaust all adequate and effective domestic remedies before filing an infringement proceeding,100 no such requirement exists for the EACJ, meaning that the Court exists in parallel with domestic judiciaries.101 Different courts have also taken diverging approaches when it comes to examining decisions taken by national courts against the benchmark of regional community law.

5. CONCLUSION The ANAW v Tanzania (EACJ, 2014) and FONARE v Costa Rica (CACJ, 2012) cases show how African and Latin American NGOs have used courts for regional economic integration, and regional environmental law to engage in environmental litigation. It is difficult to establish a clear trend: while East African civil society actors have filed several subsequent environmental cases before their regional court, Central Americans have not yet given their court a second chance. Litigation before other subregional courts remains to be explored. Nonetheless, there clearly are options for new strategies of environmental litigation based on administrative and community law principles. In the future, these approaches may provide an interesting alternative to the human rights-based approach which currently predominates in environmental litigation, especially in Latin America. The big advantage of courts for regional

EAC Treaty, art 35; Statute of the CACJ, arts 38–9. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 August 1980) 18232 UNTS 1155, art 27. 99 EAC Treaty, art 33(2). 100 See for instance 01-01-01-1998 Duarte de Herdocia v Nicaragua [1998] CACJ, Considerando V; 28-16-10-2020 Café Soluble SA v Nicaragua [2021] CACJ, Considerando III. 101 Reference No 4 of 2013 Kyarimpa v AG of Uganda [2014] EACJ 109, para 71. 97 98

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integration is that it is not necessary to squeeze environmental disputes into a human rights narrative, which can equate to ‘fitting the potentially round peg of environmental concerns into the square hole of staunchly anthropocentric human rights’.102 Most importantly, many of these courts have broader access rules than one would expect, making it unnecessary to identify a human victim as is required when filing a case before a human rights court. Also, several of these courts have taken an attitude of judicial activism and applied a wide interpretation to very general rules, thereby demonstrating a clear will to engage in environmental protection. Generally, the lack of popularity of courts of regional economic integration may be related to the fact that litigation before them demands knowledge of the functioning of the respective regional economic organization and of regional environmental law, the latter often being fragmentary, complex, poorly researched and less developed when compared to the EU. Moreover, especially in Latin America, the Andean Tribunal and the Central American Court are characterized by the highly legalistic and cumbersome language of their decisions, making them difficult to access for anyone but a specialized lawyer. In addition, the authority of these courts is inextricably linked to the success of the integration project as a whole, which can be affected by stagnation or a lack of states’ political will to actively pursue economic and/or political integration. Therefore, increasing the attention of both scholars and NGOs to the environmental law of these regional economic organizations and their courts could open innovative paths for litigation, and provide this new type of judicial environmentalism the necessary impetus.

102 Patrick Ryan Hamilton, Human Rights at the Doubling Point: Human Rights, the Environment and Climate Change in Environmental Law (LLM diss, University of Toronto, 2006) 82.

12. The national green tribunal model to ensure environmental justice through collaboration Masrur Salekin 1. INTRODUCTION The development of new international and national environmental laws and principles, the recognition of the linkage between human rights and environmental protection, the threat of climate change, and public dissatisfaction with the existing general judicial forums has prompted many countries to establish environmental courts and tribunals (ECTs).1 ECTs are considered to have the potential to build operative, accountable, and inclusive institutions at all levels essential for ensuring access to justice and improving environmental rule of law crucial for achieving the sustainable development goals (SDGs) 2030 set up by the United Nations (UN). ECTs are also charged with settling disputes that are significant for the socio-economic, cultural, and environmental wellness of nations across the world.2 According to a study undertaken by George Pring and Catherine Pring in 2016,3 at that time there were more than 1200 ECTs functioning in 44 countries; as of 1 March 2018, there were nearly 1500 ECTs in countries around the world.4

1 A judicial or administrative body specialized in resolving environmental, natural resources, land use development, and related disputes. George Pring and Catherine Pring, Greening Justice: Creating and Improving Environmental Courts and Tribunals (The Access Initiative 2009) 3. 2 Ceri Warnock, Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy (Hart 2020) 3. 3 George Pring and Catherine Pring, Environmental Courts & Tribunals: A Guide for Policy Makers (UN Environment Programme 2016) 1. 4 Don C Smith, “Environmental Courts and Tribunals: Changing Environmental and Natural Resources Law around the Globe” (2018) 36(2) Journal of Energy & Natural Resources Law 137.

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From among the long list of countries that have established ECTs, this study performs a critical analysis of the functionality, judicial pronouncements, and innovative working methods of the National Green Tribunal (the NGT) of India5 to see how far it has been able to ensure environmental justice. Recognizing that environmental problems are multifaceted and polycentric, and involve complex technical issues,6 this study explores the collaborative approach adopted by the NGT in the form of stakeholder consultative adjudicatory procedure, investigative procedure, and collegiality to show that collaboration among stakeholders can enhance mutual understanding and ensure the effectiveness of judicial decisions by improving the capacity of different organs. Recognizing the importance of the role of the courts as an independent organ to perform a meaningful supervisory role vis-à-vis the other organs of the state7 and considering the features of collaboration,8 this chapter argues that the collaborative approach can help judges to reach a sound, effective, sustainable judgment and ensure environmental justice. The NGT has been selected because leading literature9 shows that India is not only unique among South Asian countries10 in having a fully functional

5 The National Green Tribunal in India was established by the National Green Tribunal Act 2010, Act No. 19 of 2010. 6 Elizabeth Fisher, “Environmental Law as ‘Hot’ Law” (2013) 25(3) Journal of Environmental Law 347. 7 Aileen Kavanagh, “The Role of Courts in the Joint Enterprise of Governing” in Nicholas Barber, Richard Ekins, and Paul Yowell (eds), Lord Sumption and the Limits of the Law (Hart 2016) 121. 8 Collaboration provides the benefit of producing a decision involving mutual engagement of different organs superior to a decision that might have been achieved by a single organ acting by itself. Collaboration can also enhance the accountability of the organs. Eoin Carolan, “Dialogue Isn’t Working: The Case for Collaboration as a Model of Legislative–Judicial Relations” (2016) 36(2) Legal Studies 209. 9 Gitanjali Nain Gill, Environmental Justice in India: The National Green Tribunal (Routledge 2017); Pring and Pring, Environmental Courts & Tribunals (n 3). 10 Environmental tribunals in Pakistan have been rarely visible due to their lack of functionality and limited jurisdiction. The environmental tribunals have failed to address environmental concerns in a comprehensive manner. Martin Lau, “The Role of Environmental Tribunals in Pakistan: Challenges and Prospects” (2018) 20(1) Yearbook of Islamic and Middle Eastern Law Online 1. Environment courts in Bangladesh are non-functional and extremely dependent on the executives. Access to environmental justice has been denied and it has failed to achieve its goals. Md Ahsan Habib, “Reflections on Environmental Adjudication Regime of Bangladesh” (2015) Bangladesh Law Digest https://​bdlawdigest​.org/​bangladesh​-environment​-court​ -act​-2010​.html accessed February 7, 2021. Afghanistan, Bhutan, Maldives, Nepal, and Sri Lanka do not have a specialized environmental court or tribunal. George Pring and Catherine Pring, Environmental Courts & Tribunals (n 3).

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ECT, but also one of the countries11 having a comprehensive environmental tribunal. This study, acknowledging the argument that any ECT model needs to be carefully tailored to local conditions and integrated thoughtfully into the national legal and judicial system,12 proposes that the collaborative approach adopted by the NGT model can be a useful method in achieving sustainability goals in future environmental litigations. The discussion in this chapter is divided into two main sections. In the first (section 2), highlighting the complex nature of environmental problems and the lack of expertise and information before the courts that restricts them from reaching a comprehensive solution to environmental problems,13 the theory of collaboration is briefly explored. The second main section (section 3) examines the innovative working procedures of the NGT to demonstrate how the NGT has adopted a collaborative approach through stakeholder consultative adjudicatory procedure, investigative procedure, and collegiality. This section also reveals the challenges involved in adopting a collaborative approach and examines collaboration through the lens of the doctrine of separation of powers to show that collaboration is in congruence with separation of powers. The discussion in this section demonstrates that the NGT has been able to develop a robust environmental jurisprudence by making accessible to the people environmental remedies which evolved in much greater consultation with stakeholders, rather than being devised suo motu by the courts in a top-down fashion.

2.

THE NATIONAL GREEN TRIBUNAL AND COLLABORATION

As a response to systematic inequalities, corruption, and the ineffectiveness of both political leadership and administrative authorities, the courts in India adopted an activist role to protect the interests of the disadvantaged in various environmental matters. However, that has not greatly changed the scenario.14 11 The other successful ECTs are the New South Wales Land and Environment Court (NSWLEC), the Environment Court of New Zealand, the Environment and Lands Tribunals of Ontario, the Planning and Environment Court of Queensland, and the Environment, Resources and Development Court of South Australia. Brian J Preston, “Characteristics of Successful Environmental Courts and Tribunals” (2014) 26 Journal of Environmental Law 365. 12 Áine Ryall, “A Framework for Exploring the Idea of an Environmental Court for Ireland” (2015) 22(3) Irish Planning and Environmental Law Journal 87. 13 George Pring and Catherine Pring, “The Future of Environmental Dispute Resolution” (2012) 40(1–3) Denver Journal of International Law and Policy 482. 14 Lavanya Rajamani, “Public Interest Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability” (2007) 19(3) Journal of Environmental Law 293.

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The lack of technical expertise of judges and lawyers to fully appreciate and adjudicate environmental disputes, the rapid growth in the number of petitions, unrealistic orders and decisions from the courts, personality-driven rather than institutionalized adjudication, and the issue of creeping jurisdiction have obstructed the goal of achieving environmental justice in India.15 The complexities and uncertainties underpinning the scientific evidence presented before the Supreme Court of India concerned the Court and prompted it to lay the foundations for a specialized environmental court.16 In cases such as MC Mehta v Union of India,17 the Indian Council for Enviro-Legal Action v Union of India,18 and AP Pollution Control Board v MV Nayudu,19 the Supreme Court of India expressed its support for the establishment of an ECT and stated that the real benefits of an environmental court can accrue where environmental experts and technically qualified persons are embedded in the judicial process.20 As a result of the pronouncements by the Supreme Court of India in the above-mentioned cases and following the recommendations made by the Law Commission of India,21 the Indian Parliament adopted the National Green Tribunal Act (NGT Act), which came into force on 18 October 2010. The Tribunals became fully functional on 4 July 2011. The NGT benches, composed of judicial and expert members, have ensured access to justice by giving a wide interpretation to the term ‘aggrieved per-

15 Geetanjoy Sahu, “Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence” (2008) 4(1) Law, Environment and Development Journal 1. 16 Gill, Environmental Justice in India (n 9) 42, 57, 209. 17 [1987] AIR 965 (SC). 18 [1996] AIR 1446 (SC). 19 [1999] AIR 812 (SC). 20 Gitanjali Nain Gill, “The National Green Tribunal: Evolving Adjudicatory Dimensions” (2019) 49(2–3) Environmental Policy and Law 153. 21 In the 186th Report, the Law Commission of India stated that an environmental tribunal would reflect the commitments undertaken by India in global meetings. Law Commission of India, 186th Report on Proposal to Constitute Environment Courts (2003) 50.

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son’,22 expanded their jurisdictions, exercised suo motu jurisdiction23 and applied international legal principles to craft a balance between environmental protection and economic development. The success of the NGT can be measured by the high number of cases filed and disposed of by it.24 To reach sustainable and effective decisions in environmental matters and to properly implement the decisions, the NGT has adopted three innovative working procedures; this chapter argues that these collaborative approaches can ensure environmental justice through participatory decision-making, enhanced access to information, and better access to justice. The following discussion defines collaboration, discusses the features of collaboration, and rationalizes the adoption of collaboration in environmental issues, to support this chapter’s argument that the collaborative approach can be an effective method in adjudicating environmental litigations. 2.1

Defining Collaboration

According to Christopher Ansell, collaboration signifies the potential for fruitful conflict between different organs and tends to facilitate and develops the knowledge, understanding, and capacity of organs that have opposing perspectives and also divergent interests. Collaboration involves all the organs having different perspectives producing a decision together, involving mutual engagement of different organs.25 In collaborative processes, the parties have the amenity to constructively explore their divergences to reach a solution by looking beyond their restricted vision.26 22 “[T]he expression aggrieved person cannot be considered in a restricted manner. A liberal construction and flexible interpretation should be adopted. In environmental matters, the damage is not necessarily confined to the local area where the industry is established. The effects of environmental degradation might have far-reaching consequences going beyond the local areas. Therefore, an aggrieved person need not be a resident of the local area. Any person whether he is a resident of that particular area or not, whether aggrieved or not, can approach this Tribunal. In such a situation, it is necessary to review the credentials of the applicants/appellants as to their true intention or motives.” Jan Chetna v Ministry of Environment and Forests (MoEF) (Judgment February 9, 2012) 21–2. 23 Latin for on its own motion. When an action is taken by a court on its own account and not as a result of a party asking or making a motion to move the court. 24 Since its inception, a total of 38,094 cases have been filed in the NGT and the NGT has disposed of 35,955 cases with a pending list of 2,139. The National Green Tribunal www​.greentribunal​.gov​.in/​accessed June 30, 2022. 25 Christopher Ansell, Pragmatist Democracy: Evolutionary Learning as Public Philosophy (Oxford University Press 2011) 168. 26 Barbara Gray, Collaborating: Finding Common Ground for Multiparty Problems (Jossey-Bass 1989) 5.

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Collaboration allows each organ to engage with the other in decision-making on its own terms. Such engagement is subject to the respective organ’s internal security, which would create an overlapping system of collaborative competencies.27 Collaboration has the capacity to ensure that no single organ gains supremacy and supports the idea of overlapping checks and balances critical to a democratic constitution based on the rule of law.28 Collaboration implies coordinated institutional effort between the branches of state in the service of good governance. In a collaborative approach, the state organs will not act as solitary entities confined to one single function but rather as constituent parts of a joint enterprise, where each of the organs has its own role to play and all work together. In a joint enterprise, the organs will be independent but also will remain interdependent in various ways.29 This chapter proposes and develops collaboration as a method that can help the courts to overcome a majority of the challenges faced in ensuring environmental justice because of the features discussed in subsections 2.1.1 to 2.1.3. 2.1.1 Embracing distinct character of institutional conduct Collaboration has the capacity to embrace the distinct character of various forms of institutional conduct, and the processes are derived from institutional differences. One of the prerequisites of collaboration is the presence of distinct perspectives grounded on various types of processes and diverse knowledge bases. Diversity is one of the critical factors for fashioning collaboration. The driving force behind the collaborative process is the conflictual friction resulting from the overlapping objectives of the participants. Collaboration does not require any compromise or concession in the diversified perspectives of the institutions. Rather, institutional diversity and legitimacy are welcomed and acknowledged by collaborative processes. In this way, collaboration has the capacity to offer a framework for handling constitutional contestation integrating diversified societal interests.30 2.1.2 Capability to consider contexts of constitutional contestation Since collaboration is not tied to a specific vision of institutional dynamics, it is more capable of considering the contexts which work as the basis of constitutional contestation. As a result of this, collaboration can be applied to 27 Eoin Carolan, The New Separation of Powers: A Theory of the Modern State (Oxford University Press 2009) 18. 28 Eoin Carolan, “Dialogue Isn’t Working” (n 8). 29 Aileen Kavanagh, “The Constitutional Separation of Powers” in David Dyzenhaus and Malcolm Thorburn (eds), Philosophical Foundation of Constitutional Law (Oxford Scholarship Online 2016) 221. 30 Eoin Carolan, ‘Dialogue Isn’t Working’ (n 8).

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a multi-actor, multi-process system that has close proximity to the reality of constitutional government of modern times.31 2.1.3

Realistic reflection of the shifting current of social power and political activity As collaboration accepts the value of diversity, it has the capacity to eschew efforts to reach a single authoritative resolution of an issue that would be applicable to all times. In this way collaboration tends to realistically reflect changing social power and political activity. Collaboration encourages arguments to be made within each institution and testing ideas and views. The facility of collaboration is that it acknowledges that institutional positions are not monolithic, as they are the creation of dynamic social and political processes which remain prone to modifications in those dynamics.32 2.2

The Rationale behind Adopting a Collaborative Approach

Examinations of judicial decisions of the courts of three South Asian countries (India, Pakistan, and Bangladesh) show that the courts have adopted an activist approach in environmental cases by relaxing the traditional barriers to access to justice and adopting policies and creating methods and institutions for the implementation of its decisions. Although in some instances the courts were successful there are several instances where the decisions were ineffective, unsustainable, and violated the doctrine of separation of powers.33 The decisions given in the public interest litigation (PIL) cases have been criticized for being unable to sensitize the executive or the legislature to act with greater enthusiasm on environmental issues. Rather the judicial decisions have retard the possible evolution of a responsible bureaucracy.34 Judicial decisions in environmental cases such as Delhi Vehicular Pollution Case35 and Vehicular

ibid. ibid. 33 Md Saiful Karim, Okechukwu Benjamin Vincents, and Mia Mahmudur Rahim, “Legal Activism for Ensuring Environmental Justice” (2012) 7(1) Asian Journal of Comparative Law 13; Lavanya Rajamani (n 14); Masrur Salekin, “Unenumerated Environmental Rights in a Comparative Perspective: Judicial Activism or Collaboration as a Response to Crisis?” (2020) 25(6) Environmental Liability—Law, Policy and Practice 260. 34 Shubhankar Dam, “Green Laws for Better Health: The Past that Was and the Future that May Be – Reflections from the Indian Experience” (2003–4) 16 Georgetown Environmental Law Review 593. 35 MC Mehta v Union of India [2001] AIR 1948 (SC). 31 32

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Pollution Case36 showed that the judiciaries were unable to provide long-term judicial oversight resulting in sustainable solutions.37 The Indian experience in PIL cases shows that the judiciary does not have the adequate expertise and information to set cost-effective environmental standards. It is up to the executive to come up with more sustainable solutions in the long run. The judiciary alone is not enough: legislative, regulatory, and enforcement mechanisms are required to achieve sustainable environmental solutions.38 To have a lasting impact on the orders given by the apex court, political will along with budgetary allocation at the local, municipal, and national levels is also necessary.39 As a solution to these problems and to ensure environmental justice, this chapter proposes and constructs a theory of collaboration that can best capture the process towards realizing rights.40 Adopting a collaborative approach would help judges to reach sustainable, well-informed, effective and properly implementable decisions in environmental cases. Collaboration with the potential to encourage parties who can see different aspects of the same problem to constructively explore their divergences would help judges to better handle multifaceted environmental problems. For example, the complexities in the Delhi Vehicular Pollution Case41 might have been avoided if decisions were adopted after effective stakeholder consultation and through a legislative process. The Court could have played a role by passing out judgment directing the concerned authorities to take steps. The case illustrated that it was not possible for the Court to view the application of its orders beyond Delhi and to coordinate the installation of CNG fueling stations, and it would have been practical for the task to have been planned and overseen by the Delhi Transport Corporation (DTC) in collaboration with the designated CNG supplier.42 One of the major challenges in the contemporary world is how to ensure economic growth which is not detrimental to the environment. At the core of this dilemma are two human rights: the right to realize basic rights and the right Dr Mohiuddin Farooque v Bangladesh [2003] 55 DLR 613 (HCD). Armin Rosencranz and Michael Jackson, “The Delhi Pollution Case: The Supreme Court of India and the Limits of Judicial Power” (2003) 28 Columbia Journal of Environmental Law 223. 38 Michael G Faure and AV Raja, “Effectiveness of Environmental Public Interest Litigation in India: Determining the Key Variables” (2010) 21 Fordham Environmental Law Review 239. 39 Mahajan Niyati, “Judicial Activism for Environmental Protection in India” (2015) 4(4) International Research Journal of Social Sciences 7. 40 Ioanna Tourkochoriti, “What Is the Best Way to Realize Rights?” (2019) 39(1) Oxford Journal of Legal Studies 209. 41 MC Mehta v Union of India [2001] AIR 1948 (SC). 42 Rosencranz and Jackson (n 37). 36 37

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to a healthy environment. The decisions in most environmental cases show that the courts had to intervene to either ensure access to environmental information; ensure public participation; stop the building of dams, commercial buildings, or high voltage grid stations or mining; implement flood action plans; or protect rivers and wetlands from industrial pollution. The principal problems inherent in those orders are that either they did not respect the functions of the other organs or were not able to understand the complexities of the environmental problems or scientific evidence, or the decisions were not implemented because of incapacity as well as unwillingness on the part of the government. Since collaboration has the potential to provide a more descriptively and normatively appropriate account of the relationship between the state organs, it can be very useful for dealing with environmental crises. The mutual learning method might allow the legislature to enact appropriate laws, and there might be contributions from the courts to improve the decision-making of elected representatives in the area of social rights.43 Courts can make the legislature aware of how the executive applies the law and the gaps in its application that must be completed through either interpretation or change in the letter of the law.44 Recognizing that collaboration though important is a relatively new idea in environmental jurisprudence,45 it is important to provide a roadmap for the judges which would help them to play a proactive role in adopting a collaborative approach to reach a robust judicial decision in environmental matters. With this aim, section 3 examines cases where the NGT has adopted the collaborative approach in the form of participatory decision-making.

3.

COLLABORATIVE APPROACH ADOPTED BY THE NGT

In its decision-making process, the NGT has availed itself of adversarial, inquisitorial, investigative, and collaborative procedures.46 The NGT, in

43 Examples of such roles by the Courts are: Syed Saifuddin Kamal v Bangladesh and others [2018] 70 DLR 833; Nipun Saxena v Union of India [2012] Writ Petition (Civil) No 565 of 2012. 44 Tourkochoriti (n 40). 45 Proceeding of the Fourth ASEAN Chief Justices’ Roundtable on Environment, Role of the Judiciary in Environmental Protection, Philippines (2015) www​.adb​.org/​ publications/​4th​-asean​-chief​-justices​-roundtable​-environment​-proceedings accessed on April 12, 2022. 46 Gitanjali Nain Gill, “Environmental Justice in India: The National Green Tribunal and Expert Members” (2015) 5(1) Transnational Environmental Law 175.

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accordance with the power provided under Section 19 of the NGT Act,47 has adopted three innovative working methods: (i) stakeholder consultative adjudicatory process; (ii) the investigative procedure; (iii) collegiality. Diversified stakeholders are engaged through the stakeholder consultation process. This particular method ensures effective information sharing and allows the application of techniques that would support time-bound, clear-cut proposals facilitating effective enforcement of laws related to the environment. The investigative procedure allows on-the-spot investigation by the expert members and helps them to compare contradictory claims between the parties. The adoption of investigative procedure and stakeholder consultation improves the active participation of stakeholders in decision-making through dialogue, argument, and norms for eliciting factual realities and expert knowledge in order to respond to environmental problems. The collegial approach by the NGT allows it to overcome the challenge of the lack of scientific knowledge of the judges and reach a well-informed and scientifically based judgment.48 This section of the chapter analyzes various NGT decisions in which the above-mentioned innovative working procedures have been adopted to find out how the NGT has implemented the idea of collaboration in reaching environmental decisions. 3.1

Stakeholder Consultative Adjudicatory Process

Initiatives have been adopted by the NGT intending to ensure public participation in the decision-making process, which is one of the procedural elements of environmental justice. The stakeholder consultative procedure is an innovative problem-solving approach that aims to promote the active participation of all parties to resolve environmental disputes. In this procedure, both internal and external experts, along with the stakeholders, are consulted to reach a solution. These consultations take place within NGT premises and stakeholders are invited to participate under the jurisdiction, procedures, and chairing of the NGT.49

Section 19(2) of the NGT Act empowers the NGT to regulate its own procedure. Gill, “Environmental Justice in India: The National Green Tribunal and Expert Members” (n 46) 175. 49 Gill, “The National Green Tribunal: Evolving Adjudicatory Dimensions” (n 20) 153. 47 48

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The perception of the judges in the NGT is that issues having wider ramifications and public impact can be better handled and resolved when stakeholders are brought together with the technical experts of the tribunal to elicit the views of all concerned—government, scientists, NGOs, the public, and the NGT. A concerted effort and positive participation from all stakeholders are essential for delivering the desired results in environmental issues.50 It is argued that the stakeholder consultation process will provide a greater element of consent rather than opposition to a judgment. The consultative process is a stride forward to ensure scientifically driven judgments reflecting the interests, expectations, and plans of various stakeholders to produce decisions that support sustainable development and recognize the wider public interest. The stakeholder consultative approach has been described as a very helpful exercise for not only understanding the problems and challenges involved, but also finding the best possible solution.51 There are several instances52 in which the NGT has adopted the stakeholder consultative adjudicatory process involving open dialogue with interested parties. The stakeholder consultation approach has given the NGT a wide opportunity to solve environmental issues by removing the blame-game attitude that existed between the government agencies, as it has allowed them to submit clear-cut proposals and suggestions and a time frame for making changes.53 In Indian Council for Enviro-Legal Action v National Ganga River Basin Authority,54 the NGT observed: the Tribunal adopted the mechanism of ‘Stakeholder Consultative Process in Adjudication’ in order to achieve a fast and implementable resolution to this serious and challenging environmental issue facing the country. Secretaries from the Government of India, Chief Secretaries of the respective States, concerned Member Secretaries of Pollution Control Boards, Uttarakhand Jal Nigam, Uttar Pradesh Jal Nigam, Urban Development Secretaries from the States, representatives from various Associations of Industries (Big or Small) and even the persons having least stakes were required to participate in the consultative meetings. Various mechanisms and remedial steps for preventing and controlling the pollution of river Ganga were discussed at length. The purpose of these meetings was primarily to know the

Manoj Misra v Union of India (Judgment January 13, 2015). Gitanjali Nain Gill, “Mapping the Power Struggles of the National Green Tribunal of India: The Rise and Fall?” (2020) 7 Asian Journal of Law and Society 85. 52 KK Singh v National Ganga River Basin Authority (Judgment 16 October 2014); Manoj Mishra v Union of India (Judgment January 13, 2015); Vardhaman Kaushik v Union of India (Judgment April 7, 2015) and Sanjay Kulshrestha v Union of India (Order April 7, 2015); MC Mehta v Union of India & Others (Order February 10, 2016). 53 Gill, Environmental Justice in India (n 9) 167, 168. 54 Judgment December 10, 2015. 50 51

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intent of the executives and the political will of the representative States who were required to take steps in that direction.55

Swatanter Kumar J (the former Chairman of the NGT) uses the example of the Yamuna River Case56 to explain the importance and processes of the stakeholder consultative process. In that case, to come up with an implementable judgment, the NGT called Chief Secretary Haryana, Chief Secretary Delhi, Chief Secretary, Uttar Pradesh, all the Environmental Pollution Control Boards, and the Delhi Jal (Water) Board. All the stakeholders were given the opportunity of a hearing in order to understand from them the difficulties or impediments they would face were the judgment implemented. The impugned judgment was made available to them to provide clarity on the problems it might raise. So, the NGT invited criticism of the judgment for the purpose of knowing how well it could be implemented and what measures would be required to be taken to implement it.57 It is argued that the stakeholder consultative approach is helping the NGT to deliver judgments that would reflect the actual interests, plans, and expectations of the stakeholders, which would help to achieve sustainable development.58 In Paryawaran Sanrakshan Sangarsh Samiti Lippa v Union of India59 the right of the villagers to be consulted regarding the construction of the Kashang Integrated Hydroelectric Project was recognized by the NGT. In furtherance of that concern, the NGT directed the Ministry of Environment, Forest, and Climate Change (MoEFCC) and the concerned state government to undertake the necessary consultation with the villagers by placing the project proposal before the Gram Sabha (Village Committee). In the Suo Motu Proceedings initiated based on the representation received from R. Bhaskaran J v State of Kerala,60 a joint committee was constituted by the NGT comprising representatives from the Central Pollution Control Board (CPCB), the State Pollution Control Board (SPCB) Kerala, and the District Magistrate to prepare an action plan for compliance with law regarding the ibid, 3. Manoj Mishra v Union of India NGT (Judgment January 13, 2015). 57 Swatanter Kumar, “Keynote Address” (Orientation Programme on Environment and Law, Delhi Judicial Academy 2014). 58 Gill, “Mapping the Power Struggles of the National Green Tribunal of India” (n 51) 85. 59 Judgment May 4, 2016. 60 The matter of pollution caused to the river Periyar was taken into cognizance by the High Court of Kerala, India. Subsequently, the matter was transferred to the Southern Zonal Bench of the NGT and was renumbered as Original Application No 395/2013. Later, it was transferred to the Principal Bench of the NGT and was renumbered as Original Application No 585/2018. 55 56

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disposal of biomedical and solid waste. The NGT also directed the government to set up an expert committee and create an oversight committee to ensure effective management of environmental degradation. Another example of the collaborative approach adopted by the NGT is the recent decision in which the NGT directed the government to formulate a standard operating procedure (SOP) for setting up authorized recycling centers to scrap old vehicles in an acceptable way. The NGT also ordered the MoEFCC to consult with concerned stakeholders.61 3.2

Investigative Procedure

Along with the stakeholder consultative adjudicatory procedure, another innovative procedure adopted by the NGT to resolve environmental disputes is the investigative procedure. In this procedure, the expert members inspect the affected areas and examine the prevailing conditions. In the Yamuna Case,62 the NGT formed a committee comprising government officials from various ministries and government departments, as well as university professors, to conduct inspections and visit all or any of the places they consider appropriate. The investigative procedure has been approved by the Supreme Court of India in MoEF v Nirma Ltd.63 There are several cases where the NGT practiced this pragmatic step to compare and contrast contradictory claims, positions, and reports filed by the parties. In Forward Foundation v State of Karnataka64 the expert members were directed to visit the site in question to gain an informed interpretation of facts and the actual situation at the site and place their findings before the Tribunal. In Krishna Kant Singh v National Ganga River Basin Authority65 the expert members were directed to visit and inspect the site to assess the adequacy and appropriateness of all anti-pollution measures taken by the industries. No doubt, adoption of the investigative procedure gives the NGT the opportunity to gain first-hand information which helps it to reach an effective and

61 Staff Correspondent, “NGT Directs Govt to Formulate Scientific Mechanism for Dismantling Old Vehicles’ (The Economic Times, July 24, 2019) https://​economictimes​ .indiatimes​.com/​news/​politics​-and​-nation/​ngt​-directs​-govt​-to​-formulate​-scientific​ -mechanism​-for​-dismantling​-old​-vehicles/​articleshow/​70363981​.cms accessed May 27, 2022. 62 Manoj Mishra v Union of India & Others (Judgment January 13, 2015). 63 Civil Appeal No 8781–83/2013 (August 4, 2014). 64 Judgment September 10, 2015. 65 Judgment October 16, 2014.

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well-grounded decision. The investigative procedure has also been adopted to ascertain the amount of compensation recoverable from polluting industries.66 3.3

Collegiality in NGT Decision-making

Collegiality is an important process that produces a principled judgment by facilitating constructive communication between judges of different perspectives and philosophies.67 Collegiality is a sophisticated combination of rules, leadership skills, mutual trust, and a shared belief in common goals. Strong and positive collegiality can promote judicial independence in ensuring that each person’s intellectual and judicial strengths are reflected in judicial decisions.68 The combination of the NGT benches involving legally qualified judges and scientific and technical experts as joint decision-makers69 is an excellent framework to exercise collegiality, where an individual judge can improve his personal position through technical reasoning informed by an expert. Deliberation, which is one of the most valued components of collegiality, is well practiced in the working process of the NGT. NGT benches always have a pre-hearing conference and a post-hearing conference. There are interactions between the judicial and expert members before passing any order. The same process is followed in writing a judgment. In the pre-writing session, the judicial members give legal opinions whereas technical aspects are stated by the experts. After considering short notes from the experts, a draft is prepared by one or two of the judicial members. There are many instances in which the entire technical note has been reproduced and formed part of the judgment. Then the agreement is reached in writing between the experts and the judicial members and the judgment is finalized.70 The technical experts even help the lawyers to understand the technical and scientific environmental issues. It was stated in Ramdas Janardan Koli v Secretary, MoEF: ‘The purpose of having Hon’ble Experts as Members of the Bench is to render the expert’s conception to the judicial decision-making process. Otherwise, for mere 66 V Manickam v The Secretary, Tamil Nadu Pollution Control Board & Ors, Original Application No 51 of 2015. 67 Harry T Edwards, “The Effects of Collegiality on Judicial Decision Making” (2003) 151 University of Pennsylvania Law Review 1639. 68 Gitanjali Nain Gill, “National Green Tribunal: Judge Craft, Decision Making and Collegiality” (2014) 2 International Journal of Environment 43. 69 The NGT benches include technical experts in environmental sciences, environmental engineering, environmental governance, environmental safeguards, industrial and urban environmental management, urban environmental pollution, environmental law and policy, and forestry. Gitanjali Nain Gill, “Environmental Justice in India: The National Green Tribunal and Expert Members” (n 46) 175. 70 Gill, Environmental Justice in India (n 9) 159.

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adversarial litigation perhaps, the Legislature might not have made such an arrangement to establish the National level Green Tribunal.’71 The benefit of having technical and scientific experts in an environmental tribunal is that in most cases the judges sitting in a tribunal are not scientifically trained, and they may also be ill-informed on the issues by the paid scientific experts.72 The composition of the NGT benches can counteract these challenges and can spell out innovative remedies to solve the basic environmental problem at source, rather than being limited only to pre-determined legal remedies. The regular communication between the experts and the judicial members allows for reaching a qualitative and scientifically well-informed judgment to ensure environmental justice.73 3.4

Establishing Monitoring Committees and Implementation of NGT Decisions

Undoubtedly, effectiveness of the outcomes of environmental cases remains a key challenge for the NGT. In response to the requirement to develop new strategies which can ensure the effectiveness and implementation of orders, the NGT has identified three priority areas—solid waste management, river pollution, air pollution—and established Monitoring Committees to execute orders of the NGT under Section 25 of the NGT Act.74 The Monitoring Committees review the results of environmental monitoring studies and inform the NGT if there is any non-compliance with its orders and decisions. The Monitoring Committees also ensure and encourage the participation of stakeholders in a structured forum. This mechanism has guaranteed effective implementation of NGT decisions and ensured environmental justice. 75 To deal with the problem of solid waste management, the NGT principal branch held chamber meetings with all states to assess the gravity of the situation and to grasp the constraints faced by the authorities in implementing the Solid Waste Management Rules 2016 (the Rules 2016). To oversee the implementation of the Rules 2016, the NGT established a Tribunal-monitored

Judgment February 27, 2015. David L Faigmann, Legal Alchemy: The Use and Misuse of Science in the Law (WH Freeman 1999). 73 Gill, “National Green Tribunal: Judge Craft, Decision Making and Collegiality” (n 68) 43. 74 According to Section 25(1) of the NGT Act, “An award or order or decision of the Tribunal under this Act shall be executable by the Tribunal as a decree of a civil court, and for this purpose, the Tribunal shall have all the powers of a civil court.” 75 Gill, “The National Green Tribunal: Evolving Adjudicatory Dimensions” (n 20) 153. 71 72

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mechanism and formed committees at the apex level, regional level, and state level. The Monitoring Committee at the apex level is headed by a retired Supreme Court judge and consists of expert members and regulators. The Apex Monitoring Committees formulate guidelines and interact with Regional Monitoring Committees headed by retired High Court Judges and composed of experts in relation to the adoption of integrated plans to manage solid waste. The involvement of local responsible bodies is ensured by the state-level Monitoring Committees. The Committees work to encourage public involvement in solid waste management. A quarterly report is received by the NGT about the status of implementation of the Rules 2016. Statistics collected from various states of India show that solid waste management is going in the right direction under the monitoring mechanism established by the NGT.76 The NGT has also established a monitoring mechanism to tackle river pollution and rejuvenating the rivers. A four-member Monitoring Committee was ordered by the NGT to prepare an action plan to reduce the pollution levels of Indian rivers to a level that would allow safe drinking. To oversee the execution of the directions given by the NGT it has also established Monitoring Committees headed by retired judges of High Courts for certain major Indian rivers such as Ganga,77 Ghaggar,78 Hindon,79 Satluj,80 Ami,81 and Yamuna.82 In News Item Published by Vishwa Mohan Case83 all state and union territories in India were directed to prepare action plans for attaining the National Ambient Air Quality Standards (NAAQS). The Monitoring Committees review the results of environmental monitoring studies and inform the NGT of any non-compliance with its orders and decisions.

ibid. M.C Mehta v Union of India (Order August 6, 2018). 78 Stench Grips Mansa’s Sacred Ghaggar River (Suo-Moto Case) Order August 7, 2018. 79 Doaba Paryavaran Samiti v State of U.P (Order August 8, 2018). 80 Sobha Singh v State of Punjab (Order July 24, 2018). 81 Meera Shukla v Municipal Corporation, Gorakhpur (Order August 23, 2018). 82 Manoj Mishra v Union of India (Order July 26, 2018). 83 Order October 8, 2018. 76 77

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Challenges of Collaboration

Recognizing that the doctrine of separation of powers84 is considered to be the very essence of constitutionalism,85 one plausible challenge that can be brought against the collaborative approach is that it can violate the constitutional doctrine of separation of powers. However, this challenge can be counteracted by mentioning that collaborative constitutionalism has the capacity to underpin the two important elements of separation of powers, that is, the division of labour component and the checks-and-balances component. Kavanagh has argued that there are various forms and degrees of separation of powers and none preclude coordination or joint action between the organs. Albeit distinct and independent, the organs have to work together and are interdependent in various ways, as they should take account of the acts and decisions of other organs when they are adjudicating or legislating. By doing this, each of the organs makes a necessary contribution to the joint enterprise. For example, although the legislature enacts laws, it is the judiciary that has to decide what those laws mean and can fill in the gaps in the legislation by interpreting the relevant legislation. The court has the capacity to integrate particular statutory provisions into the broader fabric of legal principles. This is how law-making is seen in a collaborative enterprise and this is very much in line with the constitutional separation of powers ensuring checks and balances. In collaborative constitutionalism, the ways in which each of the organs can contribute different elements reflect their particular institutional structures, skills, competences, and legitimacy.86 The collaborative methods have the capacity to address the democratic and institutional concerns raised against the limited institutional capacity of the judicial organ of the state. Considering the restricted view of the courts caused by the traditional bilateral and adjudicative character of the judicial process, it is argued that any remedy agreed upon through stakeholder consultation 84 “The government should be divided into three branches or departments: the legislature, the executive, and the judiciary. To each of these branches, there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way, each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.” Maurice Vile, Constitutionalism and the Separation of Powers (Oxford University Press 1967) 13. 85 Eric Barendt, “Separation of Powers and Constitutional Government” (1995) Public Law 599. 86 Kavanagh, “The Constitutional Separation of Powers” (n 29) 221.

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would help the environmental courts to overcome the short-sightedness of the judiciary.87 The collaborative method conforms to Jeremy Waldron’s collective action structure,88 which sees the separation of powers as more than a principle informing distribution of powers and division of responsibilities and focuses on the relationships between the three organs when they carry out their distinct roles in the joint enterprise. Collaborative constitutionalism requires inter-institutional comity because the delicate balance between the institutions can only be maintained by mutual respect between them. This requirement of reciprocal respect between the organs of the state is an important feature of any constitutional system based on the separation of powers. In addition, collaboration is in tandem with separation of powers because it asks the organs to exercise some self-restraint when appropriate and to ensure that they remain within their jurisdiction, and also requires that each organ does not trespass into the domain of another. However, in this dimension collaboration goes beyond checks and balances, because it includes more positive forms of inter-institutional interaction. Mutual supervision takes place against the broader backdrop of mutual respect and support. In some contexts the interaction between the branches will be supervisory, where the goal is to check, review, and hold the other to account. At other times the interaction will be a form of cooperative engagement whereby the branches have to support each other’s role in the joint endeavour.89 Collaboration can also rectify unconstitutional and undemocratic judicial remedies which interfere in matters that fall within the jurisdiction of other state organs. The basis of collaboration is more accurate in terms of the reality of contemporary governance, because in modern states decision-making is a multi-stage and ongoing process wherein the notion of any institution having the final word is almost always meaningless.90

87 Eoin Carolan, “The Relationship between Judicial Remedies and the Separation of Powers: Collaborative Constitutionalism and the Suspended Declaration of Invalidity” (2011) 46(1) Irish Jurist (ns) 180. 88 Jeremy Waldron, “Authority for Officials” in Lukas H Meyer, Stanley L Paulson, and Thomas W Pogge (eds), Rights, Culture, and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (Oxford University Press 2003) 45. 89 Kavanagh, “The Constitutional Separation of Powers” (n 29) 221. 90 Carolan, “The Relationship between Judicial Remedies and the Separation of Powers” (n 87) 180.

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4. CONCLUSION Undoubtedly, the unique working procedures of the NGT have increased the credibility of its decisions. However, there are certain concerns regarding the application of its features: first, the stakeholder consultative procedure is practiced in a very informal way and generally the procedure followed is not documented; second, the stakeholder consultation procedure or the investigative procedure is adopted only in cases of wider ramification involving major environmental issues which have a public impact and are nationally important. As the NGT Act does not define issues of ‘wider ramification’ or ‘major environmental issues’, the decision to adopt the procedures is solely dependent on the NGT judges.91 This chapter recommends that judges should play a role in documenting the proceedings of the cases where a collaborative approach has been adopted. This will also help to follow precedents in environmental cases.92 It also recommends improving the competency of the judges and ensuring the presence of technical experts on the bench in order for sound decisions to be reached regarding when and in which cases it would be appropriate to adopt a collaborative approach. The application of Alternative Dispute Resolution (ADR) mechanisms in environmental matters can be used as a viable option for the courts to exercise collaboration. Mediation,93 broadly similar to the collaborative approach, provides an opportunity to have all the necessary stakeholders before the court and explores the issues at stake. However, improper use of mediation can create more pollution by allocating more time to the polluting big corporations.94 Environmental disputes are no doubt different from other social and personal disputes and special caution needs to be implemented to settle those. ADR mechanisms can allow judges to play a meaningful role in balancing the interests of the parties involved in an environmental dispute, the wider community, the environment, and also future generations.95

Gill, Environmental Justice in India (n 9). Precedent is also associated with collegiality. Edwards (n 67). 93 Mediation is a tool that allows for resolving disputes efficiently and quickly, and saves costs. When the environmental problem is complex, involving multi-party and multi-layered issues, mediation can be an effective option for the court. Jona Razzaque, “Access to Environmental Justice: Role of the Judiciary in Bangladesh” (2000) 4 (1&2) Bangladesh Journal of Law 1. 94 ibid. 95 Abul Hasanat, “Environmental Courts in Enforcement: The Role of Law in Environmental Justice in Bangladesh” (2021) 21(2) Australian Journal of Asian Law 85. 91 92

13. People v Arctic Oil: context, judgment and takeaways for future climate litigation Suryapratim Roy and Alexandru Gociu 1. INTRODUCTION On 22 December 2020, a full-bench of the Supreme Court of Norway delivered a much anticipated judgment in the case of People v Arctic Oil.1 The plaintiffs – Greenpeace Nordic, Young Friends of the Earth and other NGOs as third-party interveners – argued that petroleum exploration licences in the continental shelf of the Barents Sea should be judged invalid. The majority decision found the licences to be valid while a dissenting opinion found the licences to be afflicted by a procedural infirmity, in that there was no proper impact assessment conducted prior to the granting of the licences. A substantive portion of the judgment focuses on Article 112 of the Norwegian Constitution on the right to a healthy environment. Though the majority decision is in line with the decisions reached by the District Court (where the case began its trajectory)2 and the Bogarting3 Court of Appeal,4 the three judgments differ significantly in the way they interpret Article 112. This decision is of interest in the context of global climate litigation, where doctrine develops incrementally5 and diag1 Greenpeace Nordic Association v Ministry of Petroleum and Energy (2020) Case no 20-051052SIV-HRET (Norwegian Supreme Court) (People v Arctic Oil). Unofficial translation at: www​.klimasøksma˚l​.no/​wp​-content/​uploads/​2021/​01/​judgement​ _translated​.pdf. 2 Greenpeace Nordic Association v Ministry of Petroleum and Energy Case (2018) Case no 16-166674TVIOTIR/06 (Oslo District Court). 3 Norway has six courts of appeal each with jurisdiction on specific Norwegian counties. The Borgarting Court of Appeal has jurisdiction over Oslo and western Viken. 4 Greenpeace Nordic Association v Ministry of Petroleum and Energy (2020), Case no 18-060499ASD-BORG/03 (Borgarting Court of Appeal). 5 P Minnerop and I Røstgaard, ‘In Search of a Fair Share: Article 112 Norwegian Constitution, International Law, and an Emerging Inter-Jurisdictional Judicial Discourse in Climate Litigation’ (2021) 44 Fordham International Law Journal 847, 890.

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onally,6 and the decisions of lower courts, and even overturned judgments, influence Court rulings in other jurisdictions.7 Many commentators have been disappointed by the majority decision of the Supreme Court, have considered it a missed opportunity to protect the rights of children and youth8 and have found it to have sanctioned oil drilling at a time when there are calls for a global ban on fossil-fuel extraction.9 Aggrieved by the decision, some of the plaintiffs and young Norwegians have filed an application before the European Court of Human Rights (ECtHR), arguing that Norway is responsible for violating Article 2 and Article 8 of the European Convention on Human Rights (ECHR).10 Other commentators have found the judgment to be in line with national law, as it prevented judicial overreach on policy concerns via misconstrued rights claims.11 In order to appreciate these points of view, this chapter contextualises the case within the politics of energy policy, and the rise of new policy actors. It then charts the trajectory of the judgment from the District Court to the Supreme Court, and discusses two jurisprudential issues that may inform future climate cases.

2.

THE NORWEGIAN PARADOX

When offshore petroleum reserves were discovered in the Norwegian Continental Shelf in 1969, Norway had limited experience in the exploitation and governance of oil. Over the following decades, an original petroleum

6 H Osofsky, ‘Is Climate Change International: Litigation’s Diagonal Regulatory Role’ (2008) 49 Virginia Journal of International Law 585. 7 Though overturned by the Supreme Court, the Court of Appeals judgment in Connecticut v American Electric Power informed the arguments in the Urgenda case. S Roy and E Woerdman, ‘Situating Urgenda v the Netherlands in Comparative Climate Litigation’ (2016) 34 Journal of Energy and Natural Resources Law 165. 8 Minnerop (n 5); C Voigt, ‘The First Climate Judgment before the Norwegian Supreme Court: Aligning Law with Politics’ (2021) 33 Journal of Environmental Law 697. 9 D Shapovalova, ‘Arctic Petroleum and the 2°C Goal: A Case for Accountability for Fossil-Fuel Supply’ (2020) 10 Climate Law 282; International Energy Agency, ‘Net Zero by 2050: A Roadmap for the Global Energy Sector’ 2021, available at: www​.euronews​.com/​green/​2021/​08/​12/​the​-end​-of​-fossil​-fuels​-which​-countries​-have​ -banned​-exploration​-and​-extraction. 10 A copy of the application is available at: http://​climatecasechart​.com/​climate​ -change​ - litigation/​ w p​ - content/​ u ploads/​ s ites/​ 1 6/ ​ n on ​ - us ​ - case ​ - documents/ ​ 2 021/​ 20210615​_HR​-2020​-846​-J​_application​.pdf. 11 A Zahar, ‘A Leakage Case Litigated as a Human Rights Case’, Paper presented at the ‘Climate Litigation as Governance Tool’ Conference, Suzhou, China, 24–25 October 2020, available at: https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​ =​3714290.

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policy was put in place, where a policy of controlled exploitation under strict state control was enforced. Unlike other petroleum-rich states that are afflicted with short-termism and the resource curse,12 the idea of sustainability was at its core. Here, the conception of sustainability that proved to be influential was one where both natural resources and human capital predicated on the use of resources should be maintained long-term, and for future generations – an idea that has been described as ‘weak sustainability’.13 This may be compared with the notion of ‘strong sustainability’ where ecological protection and human capital are not substitutable, and preference is given to the former.14 Pursuant to this approach, the government established a ‘go-slow’ policy for oil exploitation. A state-owned petroleum fund was established to keep a check on how oil money is spent, and licenses for oil exploration to private parties was granted on a cautious basis.15 Norway’s Government Pension Fund Global, built on investing oil income, is today the largest sovereign wealth fund in the world – with a market value of USD 1 trillion – and is the backbone of the state’s welfare funds. Norway has progressively put in place strict environmental policies regarding petroleum production.16 In addition, the infrastructure for oil exploitation uses energy from renewable sources, and proceeds used for investments in renewables.17 In this way, Norway’s storied regulation of oil-related human capital is being translated into preservation of natural resources. Norway has historically been characterised as a ‘front-runner’ in international climate negotiations:18 The state has ratified the Paris Agreement, and

12 The classic study of how oil money leads to corruption and destabilises regimes is TL Karl, The Paradox of Plenty: Oil Booms and Petro-States (Berkeley: University of California Press, 1997). 13 M Takle, ‘The Norwegian Petroleum Fund: Savings for Future Generations’ (2020) 30 Environmental Values 147. 14 Ibid, 148. 15 A Gociu, ‘The Norwegian Petroleum Regulatory Framework and the Transition to Green Energy’ (2021) 1 Queen Mary Law Journal 33, 50; O Noreng, The Oil Industry and Government Strategy in the North Sea (London: The International Research Center for Energy and Development, 1980) 49. 16 H Ryggvik, ‘A Short History of the Norwegian Oil Industry: From Protected National Champions to Internationally Competitive Multinationals’ (2015) Business History Review 89; Gociu (n 15) 45–6. 17 ‘Norway’s wealth fund to double green energy investment cap’, The Local, 6 April 2019. 18 B Lahn and E Wilson Rowe, ‘How to Be a “Front-runner”: Norway and International Climate Politics’ in B de Carvalho and IB Neumann (eds) Small States and Status Seeking: Norway’s Quest for International Standing (Routledge, 2014).

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recently updated its climate targets.19 Norway participates in the European Union Emissions Trading Scheme (EU ETS), and imposes carbon taxes in addition, including for oil production.20 Thus Norway appears to have balanced a big oil industry with a strong commitment to dealing with climate change. However, there is one glaring issue that disturbs this picture: Norway is the seventh largest exporter of greenhouse gas emissions in the world,21 due to the combustion of the embodied emissions of its oil exports (Norway being the world’s third largest exporter of oil). This is the essence of the ‘Norwegian Paradox’.22 At the heart of the Norwegian Paradox is a normative question: should climate responsibility be attributed following a demand-side or supply-side perspective? This question informs debates on the accounting method for inventorying greenhouse gas emissions adopted internationally by the Intergovernmental Panel on Climate Change (IPCC). The IPCC has followed a geographical approach in accounting for the impact of a state on global emissions following the principle of territorial responsibility.23 This principle accounts for direct emissions at source within the boundaries of a state,24 and has received substantial criticism in recent years on grounds of fairness.25 Concerns of unfair accounting may be raised for both export and import of goods and services. States that import transformed goods may well have high standards of living and low emissions, while manufacturing countries are simultaneously afflicted by both high emissions and low standard of living.26 The opposite might equally be true where states export emissions-intensive goods, the emissions for which are borne by importing states, while the 19 In February, 2020 Norway updated its nationally determined contribution under the Paris Agreement to reduce emissions by at least 50 per cent and up towards 55 per cent by 2030, compared to 1990 levels. 20 For a review, see K Holsmark, ‘Supply-side Climate Policy in Norway’ in Nordic Economic Policy Review 2019: Climate Policies in the Nordics (Nordic Council of Ministers, 2019) 207. 21 H McKinnon, G Muttitt and K Trout, ‘The Sky’s Limit Norway: Why Norway should lead the way in a managed decline of oil and gas extraction’, Oil Change International Report, August 2017, http://​ priceofoil​.org/​2017/​08/​09/​the​-skys​ -limit​-norway​-why​-norway​-shouldlead​-the​-way​-in​-a​-managed​-decline​-of​-oil​-and​-gas​ -extraction/​ 22 Minnerop and Røstgaard (n 5) 851. 23 S Bastianoni, F Maria Pulselli and E Tiezzi, ‘The Problem of Assigning Responsibility for Greenhouse Gas Emissions’ (2004) 49 Ecological Economics 253. 24 S Gupta and PM Bhandari, ‘An Effective Allocation Criterion for CO2 Emissions’ (1999) 27 Energy Policy 727. 25 G Duus-Otterström, and F D Hjorthen, ‘Consumption-based Emissions Accounting: The Normative Debate’ (2019) 28 Environmental Politics 866. 26 Bastianoni et al (n 34) 254.

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income earned for such exports does not internalize emissions externalities. The latter case approximates the discontent surrounding Norwegian oil. Alternative approaches that are not premised on territorial constraints, such as income-based responsibility27 or shared responsibility among producers, consumers and suppliers,28 have been mooted. Once the Norwegian paradox and the preference for territorial responsibility is identified, political preferences that inform energy policy and foreign policy come into sharp relief. It is not surprising that Norway would favour the UN framework of climate responsibility that has internalized the territorial responsibility principle. Rather than opposing or hedging, it has been in Norway’s interest to support and even lead international climate policy,29 which allows a ‘separation between climate policy and petroleum resource management’.30 Energy policy premised on simultaneously continuing oil production and adopting higher climate targets has enjoyed the support of larger political parties,31 Equinor (the Norwegian oil company with a 67 per cent government share; erstwhile Statoil)32 and trade unions.33 Thus, there has been a strong policy coalition in Norway in favour of weak sustainability, as international climate law, even with advances under the Paris Agreement, is still very much based on territorial responsibility and parties are not obligated to account for their extraterritorial footprint. It appears therefore that there has been a policy path-dependence on a ‘weak sustainability’ approach to energy policy in Norway, with ecological protection assuming secondary importance compared to long-term economic security. However, new political actors and coalitions have emerged in Norway that indicate impetus for a normative shift. 27 A Marques, J Rodrigues, M Lenzen and T Domingos, ‘Income-based Environmental Responsibility’ (2012) 84 Ecological Economics 57. 28 J Rodrigues, A Marques and A Domingos, Carbon Responsibility and Embodies Emissions: Theory and Measurement (Routledge 2010). 29 For a typology of strategic approaches to climate policy, see J Meckling, ‘Oppose, Support or Hedge? Distributional Effects, Regulatory Pressure, and Business Strategy in Environmental Politics’ (2015) 15 Global Environmental Politics 19. 30 G Bang and B Lahn, ‘From Oil as Welfare to Oil as Risk? Norwegian Petroleum Resource Governance and Climate Policy’ (2020) 20 Climate Policy 997. 31 With the exception of the Progress Party, no Norwegian political party has opposed climate obligations. They have also simultaneously supported oil exploitation. R Eckersley, ‘Poles Apart? The Social Construction of Responsibility for Climate Change in Australia and Norway’ (2013) 59 Australian Journal of Politics and History 382, 386. 32 A Nissen, ‘A Greener Shade of Black? Statoil, the Norwegian Government and Climate Change,1990–2005 (2021) 46 Scandinavian Journal of History 408. 33 C Houeland, D Jordhus‐Lier and F Hambro Angell, ‘Solidarity Tested: The Case of the Norwegian Confederation of Trade Unions (LO‐Norway) and Its Contradictory Climate Change Policies’ (2021) 53 Area 413.

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First, within Norway, there are new political actors seeking to prohibit further oil exploration. The Green Party gained a seat in the Storting (the Norwegian Parliament) in 2017, with oil drilling opposition as its primary campaign. The Norwegian Environment Agency (NEA)34 has queried the economic risk of further licensing as oil reserves may become ‘stranded assets’ – this attracted opposition from industry actors, but received support from Greenpeace.35 Based on these observations, Bang and Lahn conclude that there is a new policy coalition between the Greens, NEA and NGOs.36 This is supported by public opinion – even from unusual quarters37 – on strong climate action.38 Second, unlike the conservationist and sectoral focus of Norwegian environmental NGOs,39 transnational environmental NGOs, primarily Greenpeace, Friends of the Earth and Our Children’s Future, are forces to reckon with in the area of climate policy. The normative preference for ecological stability for young and future generations40 is particularly potent and has a strong coalition of national and international actors behind it.41 The plaintiffs framed the case as one about future generations, as against an ‘oil fairytale’.42 Third, events pertaining to the Arctic may have affected policy preferences on accelerating offshore oil exploitation. Norway’s North Sea oil wells were in decline in the first decade of the twenty-first century, leading

34 The Norwegian Environment Agency is an independent government agency under the Ministry of Climate and Environment with a mainly advisory and implementation purpose in the field of climate and environmental policy. 35 Bang and Lahn (n 41) 1003–6. 36 Ibid. 37 Far-right groups such as the Nordic Resistance Movement are also in favour of strong climate action to ‘protect the purity of blood and soil’. 38 Scholars have, however, been critical of the translation of public discourse on climate change in Norway in policy documents. S Maria Tellman, ‘The Constrained Influence of Discourse: The Case of Norwegian Climate Policy’ (2012) 21 Environmental Politics 1. 39 Norwegian NGOs historically have influenced agriculture, transport and conservation policy. See J Klausen and S Opedal, ‘The “Ifs” and “Hows” of Participation: NGOs and Sectoral Environmental Politics in Norway’ in M Joas and A Hermanson, The Nordic Environments (2nd ed, Routledge, 2018) 206–32. NGOs that seek to influence and lobby for climate change appear to be Norwegian branches of transnational NGOs. 40 K Kverndokk, ‘Talking about Your Generation: “Our Children” as a Trope in Climate Change Discourse’ (2020) 50 Ethnologia Europaea 145. 41 Natur og Ungdom, Föreningen Greenpeace Norden, Naturvernforbundet (Friends of the Earth Norway) Besteforeldrenes klimaaksjon (Norwegian Grandparents Climate Campaign) are national actors with transnational support. 42 ‘Må vi ty til domstolene for å stoppe norsk oljeutvinning i Arktis?’ Dagbladet, 12 October 2015.

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to job losses and a fall in income.43 A 44-year old border dispute with Russia was settled in 2011 that led to a substantial area of the Barents Sea available to make up for the deficit in the North Sea.44 Shortly thereafter, Russia’s annexation of Crimea made Norway cautious of Russia’s stance towards the Arctic,45 which may have prompted short-term action on issuing exploratory licences to companies, but it was never an officially acknowledged strategy. The number of licences issued in the 23rd licensing round46 – pertaining to the decision under dispute (‘Licensing Decision’)47 – was substantially higher than those issued previously.48 The rise of a new policy coalition,49 coupled with concerns regarding Russia’s foreign policy, may well have led to an acceleration of oil exploration via the spike in the number of licences issued through the Licensing Decision.

3.

THE JUDGMENT

3.1

The District and Appeals Court Decisions

The Plaintiffs argued that the Licensing Decision permitting three licences on blocks in the Barents Sea is invalid on account of being contrary to Article 112 of the Norwegian Constitution,50 which recognises a right to a healthy environment. The plaintiffs also alleged that the Licensing Decision was fraught with procedural errors as impact assessments were not properly conducted. The District Court dismissed the case on the irrelevance of extraterritoriality, stating that ‘[e]missions of CO2 abroad from oil and gas exported from Norway are irrelevant when assessing whether the Decision entails a violation 43 C Kennedy, ‘Norwegian oil production to hit 25-year low, East Arctic the key?’ Oilprice 28 August 2013. 44 Arctic Forum Foundation, ‘Delimitation agreement: A new era in the Barents Sea and the Arctic?’, available at http://​eu​-arctic​-forum​.org/​allgemein/​delimitation​ -agreement​-a​-new​-era​-in​-the​-barentssea​-and​-the​-arctic/​. 45 A Østhagen, ‘Norway’s Arctic Policy: Still High North, Low Tension?’ (2021) 11 The Polar Journal 75, 82; J Wilhelmsen and K Gjerde, ‘Norway and Russia in the Arctic: New Cold War Contamination?’ (2018) 9 Arctic Review on Law and Politics 382. 46 Officially announced on 20 January 2015. 47 Ministry of Petroleum and Energy, ‘Announcement 23rd Licensing Round Awards’ Government.no (18 May 2016) www​.regjeringen​.no/​en/​aktuelt/​announcement​ -23rd​-licensing​-round​-awards/​id2500936/​. 48 B Lahn, ‘Norwegian Petroleum Policy in a Changing Climate’, Center for International Climate Research Report 2019, 27, available at: https://​cicero​.oslo​.no/​no/​ publications/​internal/​2890. 49 Comprising the Labour Party, Centre Party and Socialist Left Party. 50 People v Arctic Oil (n 1) para 6.

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of Article 112’.51 The plaintiffs’ arguments on the Licensing Decision were dismissed for two reasons: first, the Court found that the possible impacts on global climate change were too ‘remote in relation to the risk that is relevant to assess’. Second, the Court found that it could not decide on a matter that was more suited to the political process.52 Notwithstanding, the District Court broke new ground by observing that Article 112 of the Constitution is a ‘rights provision’53 imposing a corresponding duty of care on the state. Enforcement of this right grants private individuals and organisations the possibility to sue the state when they can prove that its policies could damage the environment. However, the Court emphasised that Article 112 of the Constitution is applicable only to environmental harms and greenhouse gas emissions occurring within Norway. The plaintiffs appealed the decision, relying on Article 2 (right to life) and Article 8 (right to private and family life) ECHR and their corresponding provisions in the Norwegian Constitution: Articles 93 and 102 respectively. The Borgarting Court of Appeals also decided against the plaintiffs. According to the Court, Article 112 provides grounds for challenge only when no specific provisions have been implemented.54 On the scope of the Article, unlike the District Court, the Court of Appeals established that the state had a duty of care in relation to all environmental harms flagged by the complainants, including the emissions generated by fuels mined in Norwegian territory, but exported and consumed outside Norwegian territory.55 Notwithstanding this unprecedented recognition of the state’s duty of care to recognise claims under Article 112 for extraterritorial environmental harm, and to protect Norwegian citizens from the consequences of combustion emissions, the Court found in favour of the government. This was primarily due to judicial restraint considerations in matters of policy; the Court opined that environmental harm must be evaluated against the measures that have been taken to mitigate it. In this regard, the threshold for declaring the decision to grant exploratory licences invalid is high. The Court, however, did not discuss criteria for determining this ‘high’ threshold. For the case at hand, this threshold was found not to have been exceeded. Thus, the Court of Appeals placed on the applicants a considerable burden of proof to demonstrate a violation of the right to a healthy environment.56 District Court (n 2). ibid para 28. 53 District Court (n 2) 9. Characterised as a ‘substantive rights provision’ by Minnerop and Røstgaard (n 5). 54 Appeals Court (n 4) para 14. 55 Appeals Court (n 4) para 11. 56 ibid. 51 52

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The Court also concluded that the decision was valid when analysed in the light of Articles 2 and 8 ECHR. Article 2 requires that the risk of loss of life to be ‘real and immediate’; the Court interpreted ‘immediate harm’ to mean proximate environmental harm, which was not present in the case.57 On Article 8, the Court found that that the provision did not encompass a right to environmental protection.58 The plaintiffs lodged an appeal with the Supreme Court of Norway, arguing that the Court of Appeals had improperly applied Article 112. The appellants also reserved the right to invoke Articles 2 and 8 ECHR. 3.2

The Supreme Court Decision

The Supreme Court decision comprised a majority decision (eleven judges) and a dissenting opinion (four judges). The majority decision focuses on three issues: whether the Licensing Decision infringes Article 112 of the Constitution, whether the Licensing Decision is contrary to Articles 2 and 8 ECHR, and whether there were procedural errors in the decision concerning the opening up of the Barents Sea to oil exploration. The Court approached these matters by engaging in a discussion on the science of anthropogenic climate change, international and Norwegian climate law, and procedural law for conducting petroleum exploration and exploitation. 3.2.1 Statutory Response and Compliance with Paris Agreement The parties to the case agree that climate crisis is caused by anthropogenic greenhouse gases, and acknowledge the need for reduction of such emissions in order to stop or even reverse climate change.59 Placing reliance on a Norwegian report, the Court focuses on how Norway is particularly exposed to climate harm, such as forest fires and storm surges, and the Arctic is expected to suffer more dramatic warming.60 The Court notes that Norway has ratified and implemented the Paris Agreement. The Climate Change Act,61 adopted in 2017, sets out Norway’s climate targets; the Court found that Norway has adopted targets in line with the Paris Agreement.62 Regulations under the Climate Change Act are in line with EU climate regulations, including the EU ETS, the Effort Sharing Regulation, the Regulation on

59 60 61 62 57 58

People v Arctic Oil (n 1) para 170. People v Arctic Oil (n 1) para 165. ibid para 4. ibid paras 52–5. Lov om klimamål (klimaloven) (Act Relating to Norway’s Climate Targets). ibid para 59.

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Land, Land-Use Change and Forestry63 and the European Green Deal.64 The Act further requires the government to present updated climate targets before parliament every five years,65 which must represent a progression from the preceding targets in the lead-up to 2050.66 The Court also noted that Section 3-1 of the Petroleum Act provides that the opening of an area for exploration should be preceded by an ‘impact [assessment] of the petroleum activities on trade, industry and the environment and of possible risks of pollution’.67 The Norwegian Petroleum Regulations68 under the Petroleum Act require the Ministry of Petroleum and Energy to conduct an impact assessment during the process of opening up the fields, taking into account environmental and climate impacts,69 but the method used to assess climate impacts is not specified. This impact assessment is the basis on which the Storting decides if an area is suitable for petroleum exploration.70 The production licences grant the license holders an exclusive right to investigate, search and produce petroleum, but not the right to sell the petroleum. Commercial exploitation involves obtaining additional licences.71 If a commercially exploitable discovery is made under a production licence, the licence holder must submit a plan for development and operation (PDO) as part of the approval process. The PDO must be based on an impact assessment.72 The Court noted that, in relation to the blocks in the Barents Sea South-East under dispute in this case, an impact assessment was performed comprising a total of 24 technical studies, of which a third are environment and climate related.73 Based on the above, the Court found that Norway has achieved substantive compliance with the Paris Agreement. This, coupled with the fact that the Climate Change Act does not establish any rights or duties for citizens that can be enforced through legal actions before the courts,74 means there appears to

63 Decision of the EEA Joint Committee No 269/2019 amending Protocol 31 to the EEA Agreement, on cooperation in specific fields outside the four freedoms, 25 October 2019. 64 Commission Statement 22-1302, EU-Norway Press Statement on Climate, 23 February 2022. 65 Climate Change Act § 5. 66 ibid. 67 ibid para 66. 68 Chapter 2a. 69 Section 6c first paragraph, (b) and (e) of the Regulations. 70 People v Arctic Oil (n 1) para 68. 71 Act Relating to Petroleum Activities 2015 (The Petroleum Act), LOV-2015-06-19-65 [hereinafter The Petroleum Act]. The Petroleum Act, s 3-1, 3-3. 72 The Petroleum Act s 22–22c. 73 People v Arctic Oil (n 1) para 75. 74 Proposition to the Storting (Bill) No. 77 (2016–17) 34, 53.

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be limited scope for judicial review of energy regulation. This brings us to the question of constitutional rights. 3.2.2 Right to a healthy environment and the separation of powers People v Arctic Oil is the first case in which Norwegian courts have tried to flesh out the substance of the right to a healthy environment. The Court considered whether Article 112 is a ‘rights bearing’ provision, and if private individuals can challenge legislation and administrative decisions on this basis. The Article is worded as follows: Every person has the right to an environment that is conducive to health and to a natural environment whereby productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations, which will safeguard this right for future generations as well. In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out. The authorities of the state shall take measures for the implementation of these principles.

The Court identified three main categories of rights. The first category is those that are ‘positive and grant a legal claim to something, or negative and grant freedom from interference, for individuals or groups’. These rights correspond to duties for the authorities. Second are the rights that are ‘pure “manifestos” involving duties for the authorities’, but that do not lead to concrete rights that can be judicially reviewed. Third, there are intermediate constitutional provisions, where ‘certain rights can be reviewed before the courts, but with more extensive duties for the authorities’.75 The Court charts the legislative development of Article 112 and characterises it as an intermediate right. The provision was initially adopted in 1992 as Article 110 b, but after the 2014 amendment,76 the Article was updated as Article 112 and put in Section E, pertaining to human rights provisions.77 Despite its placement in the section on human rights, the Court found that Article 112 does not create rights similar to the first and second-generation rights in the ECHR and the UN human rights conventions and is not ‘an example of a binding rule under international law’. There is no international convention to establish an individual right against climate change.78 Moreover, the Court found that the use of the term ‘principles’ conveys the idea ‘that 77 78 75 76

ibid para 79. See discussion in Section 2.1. People v Arctic Oil (n 1) para 85. ibid para 92.

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a possible right in any event is not as extensive as the duties for the authorities, in such a way that the matter involves an intermediate category’.79 Prior to 1970, judges rarely intervened in both legislation and administrative action.80 Since the Kløfta judgment81 courts review the constitutionality of legislation and administrative action, but first they need to assess parliament’s view on the provision or legislation in question, by making use of preparatory works.82 In 2014, there were significant constitutional amendments on the recognition of human rights. Since then there has been a flurry of cases in which rights-based judicial review has been exercised,83 but there is no consistency on the robustness of judicial review in cases involving economic and social rights.84 In keeping with this constitutional tradition of reliance on preparatory works85 and legislative history, the Court’s characterisation of Article 112 relies heavily on parliamentary materials that informed the adoption of Article 110b and the thinking behind the amended Article 112. A report by Professor Backer on constitutional establishment of environmental law principles86 was instrumental to the Court’s determination that the constitutional provisions on environmental protection should not be too binding. 87 Moreover, Article 110b was adopted in 1992 after a proposal presented by two members of the government,88 which suggested the Article fell somewhere between a declarative provision and a rights bearing one.89 As a result of these considerations the Court characterised Article 112 as a ‘safety valve’, where a gross disregard by the government needs to be established, which amounts to a very high threshold. 90 In relation to the case at hand, the Court emphasises that the licences were granted by Royal Decree, which was made possible by the Storting’s decisions to open the areas for petroleum activity, ‘and the opening decisions are ibid para 91. For the development of judicial review in Norway, see R Helgadóttir, The Influence Of American Theories Of Judicial Review on Nordic Constitutional Law (Brill, 2006) 155–9. 81 Kløfta. Norsk Retstidende, 1976. 82 J Husa, ‘Constitutional Mentality’ in P Letto-Vanamo, D Tamm and B Ole Gram Mortensen (eds) Nordic Law in European Context (Springer 2019) 51–4. 83 G Ulfstein, ’Høyesteretts anvendelse av traktatorganers tolkningspraksis’ (2016) Lov og rett 395. 84 Langford and Katherine Brege (n 12) 222. 85 For a definitive treatment on the use of preparatory works, see K Bergo, Høyesteretts forarbeidsbruk (Cappelen Akademisk Forlag 2000). 86 People v Arctic Oil (n 1) para 99. 87 ibid para 100. 88 ibid para 106. 89 ibid para 107. 90 ibid para 142. 79 80

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precisely what is key in this context’. There is therefore a decision from the Storting, and this makes the subsequent decisions to grant licences forms of delegated legislation.91 Characterising the right to a healthy environment as an intermediate right, the Court notes that the legal remedies to stop the awarding of licences in the 23rd Licensing Round were foreclosed, as the Storting rejected this suggestion by a strong majority vote. Thus, by referring to parliamentary and legislative history, the Court narrowed the scope of Article 112 to reopen existing legislative decisions, unless there has been gross disregard of the right. This allowed the Court to merge the tradition of placing reliance on legislative and parliamentary history with its disposition towards deferential review. The Court observed that decisions on licensing are inherently linked to political ‘trade-offs’ which are not within the remit of the Court unless there has been a gross disregard of rights.92 The fact that impact assessments had been conducted would speak to compliance with this threshold.93 In sum, legislative considerations continue to determine the use of rights in shaping the interface between climate and energy policy. 3.2.3

Duty of care for extraterritorial emissions and impact assessments Although the threshold for challenging existing legislative decisions using Article 112 is high, the Court nonetheless did uphold the District Court’s finding that there is a constitutional duty of care concerning activities under the state’s control, and damages occurring within Norway.94 If a causal chain can be established between combustion emissions due to oil exports and harm to citizens within Norway, then Article 112 could in principle be invoked to challenge petroleum exploitation policies. Given Norway’s extensive legislation on the impacts of oil exploration and exploitation in addition to use of renewable energy in the process, the Court found that damages within Norway are not made out, and the emissions from the combustion of exported oil are not within the state’s control. Here the Court narrowed down the reach of the Court of Appeals’ observations on Norway’s duty of care for extraterritorial combustion emissions. The issue of extraterritorial emissions was brought under scrutiny with respect to impact assessment as well, and the question of whether there were procedural errors in conducting impact assessments. The requirement to conduct impact assessments for the exploration and exploitation of oil through

93 94 91 92

ibid para 81. ibid para 182. ibid para 183. ibid para 149.

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state-sanctioned licences has three sources: the Petroleum Act, the Strategic Environmental Impact Assessment (SEA Directive)95 and the constitution itself. The Petroleum Act provides the procedure on opening new areas for petroleum exploration, including guidance for conducting impact assessments. These regulations are informed by the SEA Directive. The SEA Directive requires public bodies to conduct impact assessment for environmentally hazardous activities,96 including climate impacts.97 There were two central issues before the Court: (1) should the impact assessment take into account climate effects at the stage of granting production licenses under the Licensing Decision, and (2) should impact assessment include the effects of emissions outside Norway.98 On the first issue, the Court clarifies: ‘a production license, despite the usage, does not grant an unconditional right to production even if commercially exploitable discoveries are made.’99 Production would require a PDO,100 and it is at that stage that the majority felt that Article 112 would kick in to assess whether to approve the production plans – thus rendering this lawsuit premature, as there is no way to assess the existence and commercial viability of oil reserves under the blocks of the Barents Sea for which the licenses in question have been granted. From this line of reasoning, it might appear that the majority decision has deferred assessment of impact assessments to a subsequent stage. However, the majority decision narrowed the scope of judicial review of impact assessments. The Court observed that ‘the net impact of Norwegian exports of oil and gas on global emissions is complex and debated’;101 it would be ‘up to the Ministry and the Government to decide whether it was appropriate to refer to and deal with the question of climate effects at an overarching level’.102 The Court suggests that the ‘overarching level’ appears to be foreign policy involving competition between states on oil supply and

95 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment. 96 People v Arctic Oil (n 1) para 234. 97 Article 5(1) read with Annex 1 of the SEA Directive. See also European Commission, Directorate-General for Environment, Guidance on integrating climate change and biodiversity into strategic environmental assessment, Publications Office, 2013. 98 See A Gociu and S Roy, ‘Extraterritoriality of Oil Constitutionalism in People v Arctic Oil’ EJIL Talk! 16 February 2021. 99 People v Article Oil (n 1) para 218. 100 See Section 3.3.1 above. 101 People v Arctic Oil (n 1) para 234. 102 Ibid.

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other fossil fuels.103 In relation to parliamentary discussions on proposals by NGOs on phasing out of oil, such ‘proposals have been rejected by a broad political majority’.104 Following this line of reasoning – that decisions on oil exploration are matters of foreign policy and that it is political majority in the parliament that is the way to decide on these issues – the Court observed that ‘possible deficiencies in the impact assessment cannot, therefore, have anything to say for the decision on the opening of Barents Sea South-East’.105 Thus, while the Court leaves open the role of Article 112 to inform impact assessments at a later stage, it nonetheless forecloses the role of judicial review on extraterritorial emissions, irrespective of when such review might take place. It is therefore difficult to appreciate how Article 112 may bear upon impact assessments at any stage with respect to global climate change. In the dissenting opinion penned by Judge Webster, the role of Article 112 in informing impact assessments is very different: ‘The procedural rules in the petroleum legislation must be assessed in the light of Article 112 of the Constitution’ (emphasis added).106 The dissenting judges were of this opinion notwithstanding the fact that they were largely in agreement with the majority on the limited role of rights claims under Article 112. Judge Webster observed that Article 112 puts in place ‘an ongoing obligation for the Government and applies at all stages of the process, from opening of a new maritime area for petroleum activities until any production in concluded and the maritime area is restored’. She references citizens’ right to information on ‘the effects of any encroachment on nature that is planned or carried out’; read with the Petroleum Regulations and SEA Directive, information includes evaluation of ‘any measures for counteracting the climate impacts of combustion’.107 Relying on a CJEU judgment108 on the SEA Directive, Judge Webster argues that, contrary to the majority decision, there is a duty to do an environmental assessment at the earliest stage possible, and that assessment of combustion emissions accordingly cannot be postponed till the PDO applications are considered.109 The specific applications at the PDO stage would fall within the ambit of the EU Environmental Impact Assessment Directive, which should not prejudice government plans made with respect to the sector as a whole, where the SEA

Ibid. Ibid para 236. 105 Ibid para 243. 106 Ibid para 255. 107 Ibid para 273. 108 Case-671/6 Inter-Environnement Bruxelles ASBL ECLI:EU:C:2018:403. 109 People v Arctic Oil (n 1) paras 265–71. 103 104

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Directive would apply.110 On the climate impacts of extraterritorial combustion emissions, Judge Webster pivots her decision on a combined reading of the need to consider climatic factors in assessing significant effects and a footnote in Annexure II of the SEA Directive on the need to take into account ‘secondary, cumulative and long-term effects’.111

4.

TAKEAWAYS FOR FUTURE CLIMATE LITIGATION

4.1

Does the Right to a Healthy Environment Inform Climate Policy?

Given the primacy of context, climate cases appear to have little transnational value. Having said that, the plaintiffs in People v Arctic Oil use Urgenda as an inspiration.112 Since the Hague Court of Appeals judgment in Urgenda (upheld by the Supreme Court of the Netherlands), relying on rights claims for a successful climate lawsuit has become a possibility.113 With respect to the persuasive value of Urgenda mooted by the plaintiffs, the Norwegian Supreme Court swiftly dispenses with the suggestion that the two are analogous: Urgenda has ‘little transfer value’ as it did not involve prohibiting a particular measure, or questioning the validity of an administrative decision.114 The Court correctly identifies the fact that People v Arctic Oil involves a broader reach: while Urgenda was about targets, this case is about how targets may be achieved. Here the remit of judicial review is limited. It may be noted, however, that though the majority decision found in favour of the government, in some aspects the judgment has gone beyond Urgenda with respect to the reach of judicial review – it has recognised the (theoretical) possibility that the right to a healthy environment can be a basis for holding particular implementing decisions invalid. It has also recognised the possibility that the right to a healthy environment can be used to assess whether proper procedure has been followed in assessing climate harm. Per Judge Webster’s dissenting opinion, the ongoing obligation to keep the public informed on impact assessments under Article 112 requires assessment of climate impacts

110 Ibid para 284. Judge Webster relies on CJEU case law to show that the two directives should not be conflated, and that they entail independent obligations. Case C – 295/10 Valčiukienė and Others ECLI:EU:C:2011:608. 111 ibid para 263. 112 Voigt (n 8) 702. 113 S Roy, ‘Urgenda II and its Discontents’ (2019) 13 Carbon and Climate Law Review 130. 114 People v Arctic Oil (n 1) para 173.

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at all stages of the licensing process. This is an example of how the right to a healthy environment might inform impact assessments on accounting for extraterritorial climate impacts. One issue that has been overlooked in both Urgenda and People v Arctic Oil is whether there is potential for the principle of non-regression to ensure that climate action can ratchet, or avoid being diluted. We mention this because in both Urgenda and People v Arctic Oil there was an ‘environmental backsliding’ – in Urgenda there was a downward revision of national climate targets adopted by the government before the petition was filed,115 and in People v Arctic Oil the Licensing Decision enhanced oil drilling rather than cutback or even maintain the amount of emissions generated by fossil fuels. Reading the two judgments together reveals an opportunity for interpreting environmental rights in light of the principle of non-regression.116 To our knowledge, there is no specific scholarship on whether the principle of non-regression is part of a Nordic or European constitutional tradition. It has, however, recently been recognised by the European Court of Justice as a core principle of the EU legal order with respect to the rule of law.117 Given the inseparability of rights and the rule of law, it may be argued that the right to a healthy environment requires non-regression of an existing environmental standard or practice.118 This is admittedly a contentious suggestion, and will require further research. At this juncture, suffice it to say that the principle is gaining momentum in environmental constitutionalism.119 For practical purposes, it appears that the ‘environmental backsliding’ might have been halted. Notwithstanding the majority decision that found the Licensing Decision valid, there has been a dwindling in interest by companies investing in subsequent licensing rounds.120 It would be speculation to suggest that the attention garnered due to the case had a major role to play, but similarly this cannot be discounted.

Roy and Woerdman (n 7) 168. For a recent treatment, see M Vordermayer-Riemer, Non-Regression in International Environmental Law (Intersentia, 2020). 117 Case C – 896/91 Repubblika v Il-Prim Ministru EU:C:2021:311. 118 Collins and Boyd make a similar argument with respect to the right to a healthy environment in the Canadian Charter of Rights and Freedoms. L Collins and D Boyd, ‘Non-regression and the Charter Right to a Healthy Environment’ (2016) 29 Journal of Environmental Law and Practice 285. 119 L Collins, ‘Principle of Non-regression’ in Essential Concepts of Global Environmental Governance (2nd edn, Routledge, 2020). 120 A Staalesen, ‘Oil companies show less interest in remote Barents Sea licenses’, Arctic Today, 2 March 2021. 115 116

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4.2

Can a State Be Responsible for Extraterritorial Emissions?

While the Court expresses restraint in re-examining political trade-offs considered by the Storting and the Minister in deciding on the awarding of licences, it nonetheless delves into political considerations that inform policy. The Court observed that the issue of the emissions generated abroad by burning Norwegian oil must be analysed in the context of high demand for oil and gas, competition in energy supply and trends in global markets.121 The Court opined that even if Norway would not export oil and gas anymore, other oil producing countries would provide the required fossil fuels.122 Once the Court discusses transnational and economic concerns in arriving at its decision, it lets the cat out of the bag, as it were. It could proceed to discussing conflicts on the responsibility of attributing emissions, rather than assuming the producer-based responsibility principle. It could also approve of the government being comparatively responsible as a transnational fossil-fuel actor, given its investments of oil money in renewable energy projects, and having the structural privilege of being green at home. What might explain the political issues discussed by the Court as against those left out is the inclination to examine the legislative and parliamentary history. Here it is submitted that even if the Court were restricted by the policy materials on record to discuss political concerns, it could have examined reports by smaller political parties and the NEA that would have pointed to the need for Norway to restrict rather than facilitate robust licensing of fossil fuels. Rather, the Court appears to consider reports that supported the government’s decision as relevant materials in fulfilling its constitutional tradition of referring to preparatory works and parliamentary history. Once the Court characterises combustion emissions as a question of foreign policy in which the Court has no say, it becomes almost impossible for Article 112 to inform review of impact assessments at any stage of exploration and exploitation. From this it is tempting to conclude that per People v Article Oil, rights have no bearing on climate change issues. The Court observes that ‘local environmental harm’ is very much a rights-based concern, which is why the risk of blow-outs of exploratory oil wells are a concern.123 The Court also observes that ‘Although we have no figures on the extent to which emissions after combustion abroad lead to harmful effects in Norway, there is no doubt that global emissions will also effect Norway’.124

ibid para 234. Ibid. 123 Ibid para 156. 124 Ibid para 155. 121 122

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Here we find ourselves in a quandary. If combustion emissions were to harm Norway (and people living in Norway) and potential harm could trigger rights, then is it not an abdication of judicial responsibility to characterise combustion emissions as an exclusively foreign policy concern? It is no secret that, given the intimate connection between oil and the Norwegian welfare state, international negotiations on climate and energy are – and have been – very much a domestic concern.125 Thus, the issue is not so much foreign versus domestic, but rather one of judicial deference with respect to climate change policy. Judicial deference to policy decisions might be a concern when a government engages in environmental regression as a reaction to short-term interests. The government’s approach contested in this case is contrary to the sustainability ethos with which Norway has approached its energy policy over the years.

5. CONCLUSION This chapter has provided a contextual analysis of People v Arctic Oil and identified two normative takeaways for future climate litigation. Specifically, the constitutional tradition of relying on preparatory works and parliamentary history may help to explain why the substantive part of the judgment is spent on assessing parliamentary materials on the right to a clean and healthy environment. Politically, divergence between climate and energy policy has been the method used to address the Norwegian paradox of being ‘clean at home’ but ‘dirty in exports’; seen in another light, it is not really a paradox once the normative preference of weak sustainability is appreciated. Despite the seeming path-dependence on such factors, new policy actors in Norway, the rise of transnational legal actors and developments in the Arctic may explain an increase in production licences issued. Though the Licensing Decision acquitted itself, there has been distinct jurisprudence developed at the District Court, the Court of Appeals and the Supreme Court pertaining to recognition of individual claims under Article 112 to compel the state to secure a clean environment, the possibility of including harm from extraterritorial emissions in such claims, and whether impact assessments should account for combustion emissions. The majority decision of the Supreme Court narrowed the scope of rights-based claims under Article 112 by observing that judges could interfere with legislative decisions only when there is gross disregard of environmental rights. It also found that it was premature to require consideration of combustion emissions in export countries at the stage when production licences were granted. The Court characterised combustion emissions as a concern of Norwegian foreign Gociu (n 26) 61.

125

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policy, on which the judiciary would have limited say. The dissenting opinion, however, suggests that not accounting for combustion emissions at an early stage violates both Article 112 that requires a continuous obligation on the state to provide information to citizens on plans that encroach on nature and the SEA Directive that disallows postponing assessments to the exploitation stage. It was because the dissenting opinion characterised combustion emission as a constitutional and European concern that informs the policy process that the Court was able to rule on global climate change without echoing the political majority of the legislature. Given the legal and political context within which the decision was given, it would be difficult to conclude that aspects of the judgment are easily ‘diffusible’. Having said that, there are elements from all three judgments that inform the role of the right to a healthy environment in contesting and informing energy policy in an era of climate change. It has been suggested in this chapter that there is scope for the principle of non-regression to arrest policy decisions that result in environmental backsliding. Further, once potential harms from extraterritorial emissions are characterised as a domestic concern, there would be an inconsistency in characterising export emissions as an exclusively foreign policy concern, on which the judiciary has no say. This inconsistency may be resolved by adopting the view that preliminary assessment of the impact of extraterritorial emissions is an issue of domestic law.

PART IV

Case studies

14. A major future challenge for environmental law: salinization Annalies Outhuijse, Tatia Brunings, and Ida Helene Groninga 1. INTRODUCTION Salinization is an issue of considerable importance for present and future generations alike. Salinization of land and water is increasing due to climate change, alongside poor water and land management, and its effects are becoming more visible, posing threats to agriculture, the environment and drinking water.1 Experts state that we are only in the initial phases of this problem, as salinization is linked to several other problems, including soil subsidence, rising sea levels and a general shortage of fresh water.2 Although researchers 1 Intergovernmental Panel on Climate Change (IPCC) ‘Climate Change 2022: Impacts, Adaption and Vulnerability’ IPCC WGII Sixth Assessment Report (27 February 2022) 8, 9, 19, 23; José Manuel Gutiérrez and others, ‘2021: Atlas’ in Valérie Masson-Delmotte (eds), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2021); Maialen Iturbide and others, ‘Repository Supporting the Implementation of FAIR Principles in the IPCC-WGI Atlas’ (2021) https://​interactive​-atlas​.ipcc​.ch accessed 16 April 2022; Bridget Scanlon and others, ‘Global Impacts of Conversions from Natural to Agricultural Ecosystems on Water Resources: Quantity versus Quality’ (2007) 43 Water Resour Res 1, 6f; Gergely Tóth and others, ‘Updated Map of Salt Affected Soils in the European Union’ [2008] JRC Sci Tech Rep 65, 67, 76; Miguel Cañedo-Argüelles and others, ‘Salinisation of Rivers: An Urgent Ecological Issue’ (2013) 173 Environ Pollut 157, 159ff; Manzoor Qadir and others, ‘Economics of Salt-induced Land Degradation and Restoration’ (2014) 38(4) Nat Resour Forum 282, 283–95; John Olson, ‘Predicting Combined Effects of Land Use and Climate Change on River and Stream Salinity’ (2018) 374(1764) Philos Trans R Soc B: Biol Sci 1, 5–7. This contribution was finalised in April 2022. 2 Winfried Blum, ‘Characterisation of Soil Degradation Risk: An Overview’ [2008] JRC Sci Tech Rep 5, 10; Reinier Nauta, ‘What If It Becomes Too Saline?’ in ‘Saline Futures: Addressing Climate Change and Food Security’ (Book of Abstracts, Waddenacademie 2019) 33; Isa Camara Beauchampet, ‘Stakeholder Perspectives on

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from various other disciplines are addressing this problem and examining how it can be dealt with, it has so far received minimal attention in legal scholarship – even though the importance of the law’s role in the context of salinization is undeniable.3 In fact, all developments regarding salinization are regulated by environmental law. On the one hand, governments are obligated to protect citizens, their private lives, the food and water supply and the ground they live on.4 The

the Issue of Salinization in Agriculture in the Netherlands’ in Katarzyna Negacz and others (eds), Future of Sustainable Agriculture in Saline Environments (1st edn, CRC Press 2021) 208; Deltaprogramma 2021, Koersvast Werken aan een Klimaatbestendig Nederland National, available via: https://​zoek​.off​icielebeke​ndmakingen​.nl/​blg​-947163 3 The literature on salinization from the perspective of other disciplines is wide-ranging and has expanded over the years. For example, some time ago salinization was described as a development that will have an impact on our living environment: Burton Gindler and Myron Holburt, ‘Water Salinity Problems: Approaches to Legal and Engineering Solutions’ (1969) 9(3) Nat Resources J 329, 337. See for examples of more literature, among others, footnotes 1 and 2. Within the legal discipline, there is not much available and salinization is often not the main topic. Worthy of mention are Edith Brown Weiss, ‘Intergenerational Fairness for Fresh Water Resources’ (1995) 25 Envtl Poly & L 231, 234–6; Christopher Kukk and David Deese, ‘At the Water’s Edge: Regional Conflict and Cooperation over Fresh Water’ (1996) 1 UCLA J Int’l L & Foreign Aff 35, 40, 54; Brian Morris and others, Groundwater and its Susceptibility to Degradation: A Global Assessment of the Problem and Options for Management (UNEP 2003) 3–5, 19, 29, 55, 75; Stefano Burchi and Kerstin Mechlem, Groundwater in International Law: Compilation of Treaties and Other Legal Instruments (FAO/UNESCO 2005) 6, 16; Irene Heuser, ‘Milestone of Soil Protection in EU Environmental Law’ (2006) 3 JEEPL 190, 191, 202; Claudia Olazábal, ‘Overview of the Development of EU Soil Policy: Towards an EU Thematic Strategy for Soil Protection’ (2006) 3 JEEPL 184, 185–9; Teresa Parejo Navajas, ‘The New Instruments to Achieve Sustainable Development in the EU’ (2006) 3(4) JEEPL 340, 342; Dinara Ziganshina, ‘Rethinking the Concept of the Human Right to Water’ (2008) 6(1) Santa Clara J Intl L 113, 124; Petra Lindhout, ‘Application of the Cost Recovery Principle on Water Services in the Netherlands’ (2013) 10(4) JEEPL 305, 312; Frank Groothuijse and Marleen van Rijswick, ‘Een onlosmakelijk maar kwetsbaar verband: landbouw en water’ in VMR Milieuproblemen in de landbouw: falend omgevingsrecht en mogelijke oplossingen (VMR 2019-1, Boom Juridisch 2019). 4 However, while these are fundamental aspects that should be addressed in future research, this topic falls outside the scope of this contribution. See Article 2 European Convention of Human Rights (ECHR); Article 8 ECHR and Article 25 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR). The right to a healthy environment and to water can be read into several other international human rights covenants, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Covenant on the Rights of the Child, the Universal Declaration on the Eradication of Hunger and Malnutrition, the Convention on the Elimination of all forms of Discrimination against Women, and the Convention on the Right of persons with Disabilities; Committee on Economic, Social and Cultural

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law thereby acts as ‘an instrument’ to prevent or mitigate the effects of salinization. Contrarily, an unintended effect of the law – the side of the law which is better known in other disciplines – can be to create obstacles to innovative projects, and therefore the law can also act as an impediment to preventing or solving an issue. Under these circumstances, a review of the specific legal rules, the purposes they serve and whether they can be adapted or set aside in this specific situation is necessary. Our contribution illustrates the important connection between the problem of salinization and several legal questions as part of an explorative study of the role that environmental law plays in creating, addressing and dealing with the problem of salinization. In short, the aim is to answer the question why environmental law should focus on salinization in the coming years. Since the topic of salinization is comprehensive – as, of course, is the scope of the law – and could include various types of salinization, their causes and possible strategies to adapt to salinization or mitigate its effects, the angle of approach must be narrowed. Therefore, three specific measures, in one precise geographical area, have been chosen to illustrate the role of the law in this context: (i) storage of rain water by individual companies; (ii) reuse of waste water in the agricultural sector; and (iii) harvesting salt-tolerant vegetation, all in the Netherlands. Although this specific case study has been chosen for discussion, other aspects of salinization could have served equally well and with equal importance, both for the Netherlands and for other countries. This study may serve as a basis for studies in other countries, which are likely experiencing similar issues, and for a review of other aspects of salinization. This contribution is structured as follows. Section 2 explains the issue of salinization and illustrates its consequences for Dutch nature and several sectors, such as the agriculture and drinking water sectors. Section 3 addresses potential measures against salinization and legal questions related to this problem, to illustrate the role of the law and why environmental law should

Rights (CESCR) in General Comment No. 12; regarding the right to food, see Caitlinee Firer, ‘Free Trade Area of the Americas and the Right to Food in International Law’ (2003) 1 U ST Thomas L J 1054, 1059; Christine Breining-Kaufman, ‘The Right to Food and Trade in Agriculture’ in Thomas Cottier, Joost Pauwelyn and Elisabeth Burg Bonanomi (eds), Human Right and International Trade (OUP 2005) 341, 360; Marsha Echols, ‘Path to Local Food Security: A Right to Food, a Commitment to Trade’ (2007) 40(4) Vand J Transnat’l L 1115, 1116; Office of The High Commissioner for Human Rights (OHCHR), ‘The Right to Adequate Food: Fact Sheet No 34’ (April 2010) 5f; Marsha Echols, ‘Right to Food, National Security and Trade: Resolving Regime Conflicts’ (2016) 20 UCLA J Int’l L & Foreign Aff 163, 169; Sharmin Tania and Jackebeth Mapulanga Hulston, ‘Examining the Synergy Between the Right to Food and Agricultural Trade Policies’ (2016) 24(2) Afr J Int Comp Law 293, 294.

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focus on salinization in the coming years. Concluding remarks can be found in Section 4.

2.

SALINIZATION: CAUSES AND CONSEQUENCES IN THE NETHERLANDS

Within the Netherlands, large areas of land are situated below sea level and include historical tidal zones.5 In these areas, salt water is present in the subsoil.6 During summer droughts the fresh water present on top of this saltwater is depleted, leading to capillary rise of saltwater and damage to water, the topsoil and all vegetation.7 So in fact, the salinization problem in the Netherlands currently amounts to a fresh water scarcity problem.8 As long as there is sufficient rain water or other fresh water pushing the salt water down, there is no problem. But due to more extreme weather conditions and consequently longer periods of droughts, this fresh water is not currently guaranteed, as the dry summers in 2018–20 illustrate. In the event of drought, insufficient fresh water is available for all sectors and the Dutch government determines the distribution of the available water. Consequently, a water consumption hierarchy comes into place, whereby the water used for irrigation by farmers, for example, is placed low on the hierarchy.9 By way of illustration: in the summer of 2018 irrigation was prohibited in 5 About 25 per cent of the land area is below the average sea level. Moreover, a significant part of the land area is land that has been reclaimed by draining a body of water. In areas below average sea level, salt groundwater can reach the surface through upward groundwater flow, a process commonly referred to as saline or brackish seepage. 6 The Dutch ground has saline groundwater layers. This is due to previous sea transgressions and seawater intrusion. 7 Winfried Blum (n 2). 8 See about the fresh water scarcity: Herman Kasper Gilissen & Annalies Outhuijse, ‘Waterschaarste door droogte: benodigd juridisch instrumentarium voor 2030’ in C.W. Backes, E.H.P. Brans and H.K. Gilissen (eds), 2030: Het juridische instrumentarium voor mitigatie van klimaatverandering, energietransitie en adaptatie in Nederland (VMR 2020-1, Boom Juridisch 2020). 9 Article 2.9 Dutch Water Act and Article 2.1 Dutch Water Decree 2.1 & 2.9. Article 2.1 of the Dutch water Decree only concerns surface water. Article 2.9(2) Dutch Water Act also contains a possibility to declare the hierarchy applicable by analogy to the distribution of groundwater. That has not happened to this date. The Netherlands is not unique in having such a system, it is also present in Belgium and the UK, for example; Ministerie van Infrastructuur en Waterstaat, Handleiding verdringingsreeks. Informatie voor waterbeheerders bij toepassing van de verdringingsreeks voor oppervlaktewateren volgens artikel 2.1 Waterbesluit, 15 May 2019; RIVM, Ervaringen met drinkwaterrestricties in het buitenland en verkenning van de mogelijkheden voor Nederland, 2019.

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many areas in the country, and the regional competent authorities implemented a ban on the extraction of surface water. Consequently, many Dutch farmers experienced problems caused by salinization, and their harvests were lost.10 Fortunately, the situation was less severe in the summers of 2019 and 2020 and fewer restrictions applied. Nevertheless, a number of farmers were asked not to extract any surface water, and several regional authorities put a partial stop to the extraction of surface water for irrigation.11 Moreover, the drinking water supply in 2018 was under pressure because of salinization of the drinking water sources and nature has suffered severely from salinization, resulting in irreparable damage. In the future, the effects of salinization in the Netherlands will only increase. First, climate predictions feature more excessive precipitation during some parts of the year and droughts as well as shortages of water during other parts of the year.12 In combination with other consequences of climate change (soil subsidence, rising sea levels and a general shortage of fresh water), this will increase the levels of salt concentration in the Dutch soil.13 There is reason to expect that the drinking water supply in the Netherlands will be at risk from around 2050 and that part of the land will no longer be suitable for food

10 See for a review of the damage in the Netherlands: Ecorys, ‘Economische schade door droogte in 2018’ (2019) www​.rijksoverheid​.nl/​documenten/​rapporten/​2019/​08/​ 31/​economische​-schade​-door​-droogte​-in​-2018 accessed October 2021; in general, research has shown that salinization can constrain agricultural development due to its negative effects on crop yields and soil structure: see Christian Zörb, Christoph-Martin Geilfus and Karl-Josef Dietz, ‘Salinity and Crop Yield’ (2019) Plant Biology 21, 31–8; globally, 1 billion hectares of land is negatively affected by salinity and of all irrigated arable land about 20 per cent or 63 million hectares is salt affected. This number increases by 2000 hectares every day and crop damage in the irrigated areas is estimated at US$ 27.3 billion every year. 11 Nico Pellenbarg, Groundwater Management in the Netherlands: Background and Legislation (ILRI Workshop groundwater management 1997) 129; Janene Pieters, ‘Netherlands Again Too Dry; Farmers, Waterboards Concerned’ (2019) https://​nltimes​ .nl/​2019/​02/​20/​netherlands​-dry​-farmers​-waterboards​-concerned accessed 30 October 2021. 12 Intergovernmental Panel on Climate Change, ‘Global Warming of 1.5’ in Valérie Masson-Delmotte and others (eds), An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (WMO 2018) 10–12 and 19–22. 13 Tóth and others, ‘Updated Map of Salt Affected Soils in the European Union’ (n 1) 69.

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production.14 Furthermore, salinization will lead to functional changes and damage to nature, agriculture and horticulture.15 In short, the situation seen in the summers of 2018–20 will occur more frequently and will even become more severe, and Dutch citizens and sectors will periodically face the problem of salinization. As the demand for fresh water supply increases (partly as a result of population growth), supply will decrease due to factors such as climate change. The increase in frequency, duration and intensity of droughts, the rising sea level and higher temperatures will only increase the strain on the current and future supply of fresh water for the growing population. In short, something has to be done. What we see in practice is that political awareness is growing because of the dry summers and their consequences. This is apparent, for example, from the Delta Programme, one of whose pillars is ‘ensuring sufficient fresh water’.16 The sum of 800 million euros is available for the implementation of the programme.17 The next phase is to put this into action and make the legal framework suitable for the measures. This is where the importance of environmental law comes in.

14 Annalies Outhuijse and Maurits de Munck, ‘Toekomstig klimaat in Nederland: wat staat ons te wachten?’ (2019) www​.stibbe​.com/​en/​news/​2019/​december/​ toekomstig​-klimaat​-in​-nederland​-wat​-staat​-ons​-te​-wachten accessed 30 August 2021; Milieueffectrapport Nationale Omgevingsvisie, ‘Drinkwater’ (Royal HaskoningDHV) www​.planmernovi​.nl/​de​-staat​-van​-de​-fysiek​-leefomgeving/​economische​-omgeving/​ natuurlijke​- hulpbronnen/drinkwater accessed 21 July 2021; Harry Boukes and others, Grondwater Atlas van Fryslan (Provincie Fryslân 2020); Jeroen de Kempenaer, Willem Brandenburg, & Luc van Hoof, Het zout en de pap, een verkenning bij marktexperts naar langetermijnmogelijkheden voor zilte landbouw (2007); Arjen de Vos and others, Crop Salt Tolerance under Controlled Field Conditions in the Netherlands, Based on Trials Conducted at Salt Farm Texel (Salt Farm Texel 2016); Salt Farm Texel, ‘Breakthrough in Food Security with Dutch Knowledge of Saline Agriculture’ (2017) www​.waddenacademie​.nl/​en/​news/​news​-archive​-item/​breakthrough​-in​-food​ -security​-with​-dutch​-knowledge​-of​-saline​-agriculture accessed 30 October 2021. 15 Digitale etalages, ‘Verzilting in Nederland’ (2020) www​.digitaleetalages​.nl/​ thema/​water/​verzilting/​v​erziltingi​nnederland​.html accessed 30 October 2021. 16 The aim of this policy programme is threefold: (1) addressing the issue of current and future flooding, (2) ensuring sufficient freshwater, and (3) spatial adaptions within the Netherlands by the year 2050; see Deltaprogramma; waterveiligheid, zoetwater en ruimtelijke adaptatie, 2021: www​.rijksoverheid​.nl/​onderwerpen/​deltaprogramma/​ deltaprogramma​-bescherming​-tegen​-overstromingen​-en​-zoetwatertekort accessed 30 October 2021. 17 Delta Programme Commissioner’s Staff, National Delta Programme 2022: Every New Development Climate Proof (Dutch Ministry of Infrastructure and Water Management 2021) 55.

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POSSIBLE MEASURES AND THE ROLE OF ENVIRONMENTAL LAW

Due to the multiple causes of salinization, the various potential measures and solutions are diverse. Various publications and literature from other disciplines present possible strategies that involve adaptation strategies for the agricultural sector, such as the modification of crops, or testing various types of crops for their salt tolerance.18 Conversely, other strategies focus on prevention of salinization; for example, ensuring a sufficient amount of fresh surface- and groundwater by preserving water during wet periods and limiting activities that might further negatively affect the ground. An example of such a measure would be limiting excessive extraction of water or banning the infiltration of salt-rich substances into the ground.19 The role that the law plays in addressing the issue of salinization is (at least) twofold. In essence, the law may be used as an instrument to prevent or delay further salinization, for example by prohibiting actions that have a negative effect and by stimulating actions that have a positive effect, such as by means of subsidies. On the other hand, for innovative and new strategies, the law could also pose an impediment to prevent or mitigate the effects of salinization; sometimes the presence (or absence) of applicable rules may render a project difficult or even impossible to realize.

18 Jelte Rozema and Timothy Flowers, ‘Ecology. Crops for a Salinized World’ (2008) 322 (5907) AAAS 1478, 1479–80; Marc van Rijsselberghe, ‘Effects of Increased Seawater Salinity Irrigation on Growth and Quality of the Edible Halophyte Mesembryanthemum Crystallinum L under Field Conditions’ (2017) 187 Agriculture Water Management 37–46; Dionysia Angeliki Lyra and Stathis Lampakis, ‘Modular Farming Approach Utilizing Saline Water Resources to Enhance Food and Nutrition Security in Desert Environments: Two Case Studies in United Arab Emirates’ in ‘Saline Futures: Addressing Climate Change and Food Security’ (Book of Abstracts, Waddenacademie 2019) 83–5. 19 For a report on projects regarding the protection of the Wadden Sea area, see Philipp Schwemmer and Franciscus Colijn, The Wadden Sea in an International Perspective: Current Research in Germany, Denmark and the Netherlands Report (Waddenacademie 2009); in addition, note for example several OECD studies that show that putting the right price on water will encourage people to waste less, pollute less and invest more in water infrastructure OECD, ‘Water: The Right Price Can Encourage Efficiency and Investment’ (2019) www​ .oecd​ .org/​ env/​ resources/​ water​ -theright​pricecanen​courageeff​iciencyand​investment​.htm accessed 30 October 2021.

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As researchers from other disciplines are researching the effectiveness and feasibility of possible measures, the following questions should be reviewed and answered from a legal perspective: • What are the options for the international, national and regional governments to limit the effects of salinization? • Generally, what are the legal possibilities and limitations? • Are the options offered by current legislation and regulations being put to optimal use? • Are adjustments to the current legislation and regulations required? Due to the limited extent of this contribution, not all possible measures and their legal questions can be considered. We therefore describe three measures and related legal questions, namely: (i) storage of rain water by individual companies; (ii) reuse of waste water in the agricultural sector; and (iii) harvesting salt-tolerant vegetation. These measures are mainly focused on the agricultural sector, which is not surprising, since salinization in the Netherlands is currently a water scarcity problem and the farming sector is the largest user of fresh water and one of the first sectors to experience the problems of salinization.20 3.1

Storage of Rain Water by Individual Companies

Since 2010, a few actors in the Netherlands have been exploring the option of using underground water storage for agricultural or horticultural purposes in order to become more self-sufficient and less dependent on governmental actors for receipt of fresh water during drought periods.21 While in some projects this has been implemented successfully, the option is not yet being used on a larger scale, partly because of legal questions and legal complications that present themselves. One of the reasons for this is that the realization of an underground water storage system entails several sub-activities that may

20 OECD, ‘Managing Water Sustainably is Key to the Future of Food and Agriculture’ (2021) www​.oecd​.org/​agriculture/​topics/​water​-and​-agriculture/​ accessed 30 October 2021; Guillaume Gruère and Makiko Shigemitsu, ‘Measuring Progress in Agricultural Water Management: Challenges and Practical Options’ (2021) OECD Food, Agriculture and Fisheries Papers, No. 162 www​ .oecd​ .org/​ environment/​ measuring​-progress​-in​-agricultural​-water​-management​-52b4db7e​-en​.htm accessed 9 March 2022; agriculture composes 70 per cent of worldwide freshwater abstractions and is the largest water user globally. 21 ibid.

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require several governmental permissions.22 These tasks include drilling for laying wells, the installation of drainage or infiltration systems, the withdrawal of rainwater for the purpose of infiltrating it, the infiltration of water into the soil, the discharging of water and the extraction of groundwater. These activities are not regulated in the same way; thus, different legislation applies. As a result of this legislative fragmentation, various permissions and permits may be required from multiple authorities to establish underground water storage. The Dutch Water Act (Waterwet) regulates water infiltration, which is defined as ‘introducing water into the soil to supplement the groundwater in combination with the later extraction of groundwater’.23 The competent authority, and whether a permit is required or a notification (melding) suffices, depend on the scale and location of the underground water storage undertaking. In the case of storage for agriculture purposes, the Water Board is the competent authority to grant permission for water infiltration in the Netherlands.24 There are more than 20 regional Water Boards in the Netherlands: the question of which Water Board is competent therefore depends on the location where the activity will be implemented. The Water Boards determine in their regional legislation in which cases a permit is required and in which cases a notification suffices. This mostly depends on the scale and amount of the water extracted. Some activities that do not significantly affect the water management system, such as small groundwater extractions, require only a water notification, not a water permit. But in such cases it is still necessary to comply with directly applicable general provisions of, for example, the Water Decree (Waterbesluit), the Water Regulation (Waterregeling) or regulations issued by Water Boards and provinces. This includes measurement obligations. In general, in order for a permit to be granted, the activities must be in line with the objectives of the Water Act, one of which is the prevention and

22 It should be explicitly mentioned that the exact required permissions depend on the content, location and scope of the project. 23 A water permit or water notification is based on the Water Act (Waterwet) and is required for most activities performed in surface water or for activities that use groundwater. 24 Water Board Act (Waterschapswet), art. 1; According to Article 6.4 of the Water Act, the province is the competent authority for groundwater abstractions and infiltrations only in three situations: (1) industrial applications, if more than 150,000 m3 per year is withdrawn; (2) the public drinking water supply; (3) a soil energy system. In some cases, groundwater abstractions and infiltrations may also fall under the authority of the Minister of Infrastructure and the Environment (in practice: Rijkswaterstaat) (see Article 6.10a of the Water Decree). This applies to abstractions and infiltrations that take place in surface water bodies where Rijkswaterstaat carries out water quantity management. Groundwater abstractions for which Rijkswaterstaat is competent are found mainly in the floodplains of the major rivers of the Netherlands.

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(where necessary) limitation of water scarcity.25 Moreover, a water permit for infiltrating water in combination with a later withdrawal may be granted only if no risk of groundwater contamination exists.26 Evidently, the permit holder must prevent any damage to immovable property caused by the extraction of groundwater or the infiltration of water, insofar as this can reasonably be required. This merely concerns the regulation of the infiltration of the water. Other legal authorizations may be needed for the other sub-activities. A common example is an environmental permit for construction activities of the drainage or infiltration system, which among others requires a review of the zoning plan of the relevant municipality.27 The competent authority for this activity is the municipality. The zoning plan includes detailed rules on how a certain plot of land or area may be used.28 Moreover, it also indicates whether a permit is required for the drainage of the soil.29 Additionally, depending on the location, it is possible that the water storage will be located close to a designated nature area. In such circumstances, a permit may be required under the Nature Protection Act.30 If it is located near a protected water zone, a permit from Rijkswaterstaat may be required. In short, the exact permissions required depend on the location of the water storage, the system it uses, and its scale. The information above already indicates that the establishment of an underground water storage system can become legally complex. First, it is necessary to establish which permits are necessary and from which authorities. Second, during the process of granting permits, ambiguities may arise about what is allowed regarding the various sub-activities. Lastly, even if an activity is not directly in breach of the legal framework, this does not mean that authorities will automatically actively support and grant permission for that activity. In Water Act, art 2.1. Water Act, art 6.26(3). Moreover, the Dutch Soil Protection Act (Wet bodembescherming) is also applicable and prescribes obligations to guarantee the quality of the infiltration water: see arts 12, 28, 30. 27 An integrated environmental permit (Wabo permit) is a single permit granting permission for activities that have an impact on the physical environment, such as construction, demolition, spatial planning and pollution. The permit is granted under the Environmental Permitting Act (Wet algemene bepalingen omgevingsrecht); Environmental Permitting Act, art 2.1. 28 The Spatial Planning Act (Wet ruimtelijke ordening) sets out how the spatial plans of the state, provinces, and municipalities are to be implemented. 29 Environmental Permitting Act, art 2.1. 30 The Nature Conservation Act (Wet natuurbescherming) aims to protect nature areas, wild animals, plants and forests. Performing activities inside and outside Natura 2000 areas that have significant adverse effects on the quality of natural habitats, or habitats of species present in Natura 2000 areas without a permit is prohibited (Article 2.7(2) of the Nature Conservation Act). 25 26

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general, applying for the correct permissions takes a long time, and the procedures to acquire such permits can take from a few months to a matter of years. Finally, after receiving the required permission, individuals must comply with the general rules, which include measurements obligations following from the Water Decree and Water Regulation. All of this demonstrates that developing such projects can be a burden for individual companies. Although there are examples of underground water storage in the Netherlands, it is not a common practice.31 Pilot projects performed by a partnership of experienced companies show that it can be difficult to obtain the relevant permissions from the authorities, because of the limited experience with these new initiatives at the authorities.32 These new ideas are innovative and unfamiliar, which can make authorities more reluctant to cooperate. Moreover, obtaining all the relevant permissions, in combination with the obligations that come with using the system, can lead to significant costs for the user, which might not be currently supported by the economic benefits of the investment.33 This example shows that the current administrative and legal system can cause bottlenecks, hindering a method for farmers to be self-sufficient and protect themselves against the effects of salinization. In general, the Dutch legislature does recognize that innovative projects are suffering from the complex legal framework, which consists of many fragmented laws and regulations. Consequently, a legislative proposal has been launched and accepted, which combines and should simplify the framework of environmental legislation into the Environment and Planning Act (EPA (Omgevingswet)). This Act is expected to enter into force on 1 January 2023. Under the EPA, an integrated environmental permit will cover a wide range of activities that currently require separate permits and permissions. However, the EPA distinguishes between an integrated environmental permit concerning water activities and a permit concerning non-water activities. Therefore, an application for a permit concerning water activities will still need to be filed separately when the EPA comes into effect. At the time of writing, this legislation is facing a significant amount of criticism – including as to whether it will truly lead to simplification – and it is therefore uncertain whether it will

As mentioned, examples are the Coastar and Spaarwater projects. Spaarwater, ‘Eigen watervoorziening: Ondergrondse opslag perceelseigen water Technische rapportage 2016–2018’ (Achtergrondinformatie behorende bij hoofdrapport, 2019). 33 Pavel Kabat and others, Knowledge for a Sustainable Future of the Wadden: Integrated Research Agenda of the Waddenacademie (Waddenacademie-KNAW 2009) 87–89; Spaarwater, ‘Rendabel en duurzaam agrarisch watergebruik en waterbeheer in de verziltende Waddenregio’ (Hoofdrapport, 2016–19) www​.spaarwater​.com/​pg​ -27227​-7​-101962/​pagina/​nieuwe​_resultaten​.html​#!section accessed 30 October 2021. 31 32

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take effect on 1 January 2023. Until that moment, the current legal framework remains applicable. In sum, it could be concluded that at this moment the legal framework does not stimulate companies to be self-sufficient – and that it forms an impediment to preventing or delaying the problem of salinization. 3.2

Reuse of Waste Water in the Agricultural Sector

Another measure concerns examples whereby agriculture and horticulture companies receive fresh water from industrial companies in times of drought, so that irrigation with fresh water is still possible and the fresh water pushes the salt water down. A number of Belgian companies (including AbInbev, Tiense Suikerraffinaderij and dairy company Olympia), for example, made purified process water available to local agriculture and municipal green services during the 2018 drought.34 Aquafin also offered its purified wastewater for various applications that did not require drinking water quality.35 There are examples of similar activity in the Netherlands, such as a Brabant brewer who is already supplying water from its brewery to the surrounding farms.36 Many legal questions are connected to the reuse of waste water; for example, what are the minimum requirements this water should meet, and what are the consequences when the water is classified as waste within the meaning of the Waste Framework Directive? The newly adopted EU Regulation (Regulation (EU) 2020/741), which entered into force on 26 June 2020 and applies in the Member States from 26 June 2023 onwards, is important for reviewing this measure from a legal perspective.37 This EU Regulation is a response to longer droughts in Europe, especially the South of Europe. The underlying objective is to improve the 34 H2O, ‘Gezuiverd afvalwater af te halen bij Vlaamse zuiveringsinstallaties’ (2019) www​.h2owaternetwerk​.nl/​h2o​-actueel/​gezuiverd​-afvalwater​-af​-te​-halen​-bij​ -vlaamse​-zu​iveringsinstallaties accessed 30 October 2021. 35 Coördinatiecommissie Integraal Waterbeleid, werkplan 2019. 36 Marianne Wilschut, ‘Ondanks de droogte hebben deze Brabantse boeren frisse percelen. Het geheim?’ (2020) www​.trouw​.nl/​duurzaamheid​-natuur/​ondanks​ -de ​ - droogte ​ - hebben ​ - deze ​ - brabantse ​ - boeren ​ - frisse ​ - percelen​ - het​ - geheim​ - bavaria​ ~b8bc564e/​?utm​_campaign​=​shared​_earned​&​utm​_medium​=​social​&​utm​_source​=​ whatsapp accessed 14 March 2022. 37 See also Anna Berti Suman and Attilio Toscano, ‘Public Acceptance of Water Reuse for Agriculture in the Wake of the New EU Regulation: Early Reflections’ (2021) 18 JEEPL 225–55; Annalies Outhuijse, Tatia Brunings and Ida Helene Groninga, ‘Alleviating Water Scarcity across the EU: The Contribution of the European Union’s Proposal for a Regulation on Water Reuse in the Agricultural Sector’ (European Law Blog, 27 April 2020) https://​europeanlawblog​.eu/​2020/​04/​27/​alleviating​-water​-scarcity​ -across​-the​-eu​-the​-contribution​-of​-the​-european​-unions​-proposal​-for​-a​-regulation​-on​ -water​-reuse​-in​-the​-agricultural​-sector/​ accessed 14 March 2022.

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EU’s ability to respond to increasing pressures on water through water reuse. The main idea is that European farmers can receive treated urban waste water (‘reclaimed’ water) as a reliable alternative water supply for agricultural irrigation. The EU Regulation aims to provide the agricultural sector with sufficient good quality irrigation water. It contains a number of minimum requirements that providers of this reclaimed water must meet before providing it to farmers. Member States have a direct obligation to ensure that their operators of reclamation plants meet these minimum requirements. There is no obligation for farmers to participate in this system of water reuse. For the system to be successful, the governments of the Member States must encourage reuse via information dissemination. Member States must ensure that information and awareness-raising campaigns are developed, with the incentive to make stakeholders more aware of the benefits of water reuse and to promote public acceptance. All these measures and obligations aim to encourage water reuse by the agricultural sector. Thus, the Regulation should serve as an incentive and an appropriate framework to guide future operations that could resemble the ones that have already taken place in Belgium and the Netherlands if the operations include urban wastewater. The EU Commission has great expectations of this Regulation. In anticipation of the EU Regulation, the EU Commission stated in the explanatory memorandum that the proposed instrument could lead to water reuse in agricultural irrigation in the magnitude of 6,6 billion m3 per year, as compared to 1,7 billion m3 per year in the absence of any EU legal framework. Reusing more than 50% of the total water volume theoretically available for irrigation from waste water treatment plants in the EU would avoid more than 5% of direct abstraction from water bodies and groundwater, resulting in a more than 5% reduction of water stress overall.38

Fostering the reuse of waste water could be a promising measure to prevent the effects of salinization in the agricultural sector. It is a clear example of the law stimulating actions that have a positive effect on the problem of salinization. The benefit of a Regulation at EU level is that it is directly applicable to all 27 EU Member States and to all the providers of reclaimed water, thereby

38 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on Minimum Requirements for Eater Reuse’ COM (2018) 337 final, 2. Also interesting in this respect: Geertje Pronk and others, ‘Increasing Water System Robustness in the Netherlands: Potential of Cross‑Sectoral Water Reuse’ (2021) 35 Water Resources Management 3721–35.

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supplying a supportive and coherent framework to optimize the already widely practised water reuse across the EU.39 3.3

Salt-tolerant Vegetation

A final example of a possible measure in the Netherlands involves not prevention of water scarcity and thereby prevention of salinization, but rather adaptation to salinization. This concerns the exploration of salt-tolerant vegetation. These are crops that can tolerate brackish water without compromising production or quality.40 Individual farmers within the Netherlands already have experience with the creation of salt-tolerant crops, fostering specific varieties of potatoes, carrots, red onions, white cabbage and broccoli that appear to thrive if they are irrigated with salt water.41 The Dutch government is also supporting this, by providing subsidies to individual farmers to experiment with salt-tolerable vegetation and to conduct scientific research into how this can provide a sustainable alternative. Research into salt-tolerant crops stems from the issue of excessive salinization of soil and lack of fresh water reservoirs within the Netherlands for irrigation in the agricultural sector.42 Growing salt-tolerant crops is probably the most promising measure in the long term for sustainable food production, 39 See for a more detailed analysis of the EU Regulation and the consequences for the Dutch legal framework: Annalies Outhuijse and others, NtER 2022, to be published. 40 Jelte Rozema and Timothy Flowers, ‘Crops for a Salinized World’ (2008) 322(5907) AAAS 1478, 1479f; Marc van Rijsselberghe, ‘Effects of Increased Seawater Salinity Irrigation on Growth and Quality of the Edible Halophyte Mesembryanthemum Crystallinum L under Field Conditions’ (2017) 187 Agric Water Manag 37–46; Christopher Miller, ‘Adaptive Management Strategies to Minimize the Impacts of Salt Water Inundation on Agricultural Lands in the Eastern US’ (Conference, Leeuwarden, 10–13 September 2019) 24; Dionysia Angeliki Lyral and Stathis Lampakis, ‘Modular Farming Approach Utilizing Saline Water Resources to Enhance Food and Nutrition Security in Desert Environments: Two Case Studies in United Arab Emirates’ in ‘Saline Futures: Addressing Climate Change and Food Security’ (Book of Abstracts, Waddenacademie 2019) 83–5; Iain Gould and others, ‘The Impact of Coastal Flooding on Agriculture: A Case-Study of Lincolnshire, United Kingdom’ (2020) 31(12) Land Degrad Dev 1545, 1547ff. 41 Ministry of Agriculture, Nature and Food Quality, ‘Dutch Saline Agriculture Knowledge Brings Breakthrough in Food Security’ (2017) www​.government​.nl/​latest/​ news/​2017/​02/​23/​dutch​-saline​-agricultural​-knowledge​-brings​-breakthrough​-in​-food​ -security accessed 30 October 2021. 42 Z. Starmans, ‘Salinization of Dutch Agriculture: How to Adapt?’ (Bachelor’s Thesis, University of Groningen 2014); Annalies Outhuijse, Tatia Brunings, Ida Helene Groninga, ‘Governmental Options to Regulate Water Scarcity: What Can the Law Offer?’ [2020] SSRN https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3585539 accessed 30 October 2021.

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since it ensures continuous production in an increasingly saline environment. As a result, Dutch farmers are able to continue crop production despite climate change, drought, and increase in salinized environments.43 Moreover, salt-tolerant crops can contribute to the general water scarcity problem, since less fresh water is needed within the agriculture sector. The pilot projects include the testing of irrigation with water with varying salt concentrations. This testing brings about various unanswered legal questions, such as whether water with this higher salt concentration is allowed to be used for irrigation purposes on the basis of the current legal framework. Additionally, because of the unknown effects of the use of brackish water on a larger scale, local authorities are not always in favour of these experiments and irrigation with water with high salt concentrations. This is currently an impediment – in regulatory approval terms – to experimentation with salt-tolerant crops on a larger scale and its becoming an alternative to current farming practices.

4.

CONCLUDING REMARKS

Salinization is a major problem for current and future generations, with consequences for agriculture, nature and drinking water. Although researchers from various other disciplines are addressing this problem and examining how it can be dealt with, so far it has received minimal attention in legal scholarship. Our contribution has explained why this is unwise and, more specifically, why salinization is a future challenge for environmental law. One conclusion is that the problem is insufficiently recognized. If solutions to this problem are not found soon and the legal framework is not adapted, salinization and its consequences for nature, drinking water and agriculture will become an even greater challenge for environmental law in the near future. As set out in the chapter, experts state that we are only in the initial phase of this problem, as salinization is linked to several other problems, including soil subsidence, rising sea levels, and a shortage of fresh water, and therefore requires more attention. Moreover, our contribution has illustrated that the legal framework can cause bottlenecks, hindering innovative and sustainable projects on mitigating or preventing salinization. For example, ideas exist which could make farmers more self-sufficient by collecting water resources of their own, which can be used in the case of arid summers, thereby limiting salinization effects. The

43 Stichting Toegepast Onderzoek Waterbeheer, ‘Salt Tolerant Crops’ (2021) www​ .stowa​.nl/​deltafacts/​z​oetwatervo​orziening/​delta​-facts​-english​-versions/​salt​-tolerant​ -crops accessed 30 October 2021.

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current legal system, however, actually makes it difficult to, for example, realize underground water storage for individual companies or experiment with salt-tolerant vegetation. These are examples where rules form an impediment to preventing or solving the problem. In this situation, a review is required of the specific legal rules, the purpose they serve and whether they should be changed or set aside in this exact situation. In the Netherlands, it was necessary to raise awareness that the issue of salinization requires attention. After three dry summers (2018–20), political attention has been generated but a suitable legal framework is missing. Although the Netherlands is identifying the problem, the question is what specific measures will be taken to delay the problem, or to adapt to it – simple prevention already seems impossible. In our opinion, a legal framework should be formulated with specific standards and goals. This would give a clear signal that action needs to be taken, and in concrete terms. In general, it can be said that the institutional framework (legislation and regulations, planning procedures and administrative bodies) must be designed in such a way that the measures, as formulated above, can easily be applied and encouraged in practice. In future research, we will seek to address this further on the basis of specific examples. Because of the worldwide scope of the problem, this subject deserves more attention among environmental lawyers. We have so far focused on the Netherlands, but the problem of salinization is actually global and is even worse in many other areas around the world than it is in the Netherlands. Therefore, other case studies must be considered and more environmental lawyers need to tackle this challenge; much more work can, and must, be done. We hope to have created sufficient awareness of this problem. This contribution is a first step towards a greater goal: encouraging environmental law reform to address this problem properly.

15. Bringing nature back to agricultural land: bridging ambition and reality in agri-environmental governance Edwin Alblas 1. INTRODUCTION1 The European Union’s ‘Farm to Fork’ strategy, at the heart of the Green Deal, sets out the goals of reducing the environmental impact of the EU food system and ensuring food security in the face of climate change and biodiversity loss.2 Realizing such ambitions will be no easy feat, since the large share of agricultural production across the EU is both intensive and chemical-based.3 At the same time, transitioning towards more ‘nature-inclusive’ farming practices is presently often perceived by farmers as prohibitively expensive, burdensome and even ‘unrealistic’.4 In recent years, government proposals for new environmental policies have repeatedly led to protests by farmers across the EU, the Netherlands being an illustrative example.5 1 The research was funded by the European Research Council under the Horizon 2020 Research and Innovation programme (grant no. 639084). I want to express particular thanks to everyone who participated in the interviews. 2 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘A Farm to Fork Strategy for a Fair, Healthy and Environmentally-friendly Food System’ COM/2020/381 final. 3 K Henle and others, ‘Identifying and Managing the Conflicts between Agriculture and Biodiversity Conservation in Europe – A Review’ (2008) 124 Agriculture, Ecosystems & Environment 60; C Stoate and others, ‘Ecological Impacts of Early 21st Century Agricultural Change in Europe – A Review’ (2009) 91 Journal of Environmental Management 22. 4 I Hodge, J Hauck and A Bonn, ‘The Alignment of Agricultural and Nature Conservation Policies in the European Union’ (2015) 29 Conservation Biology 996, 997; J Ekroos and others, ‘Optimizing Agri-environment Schemes for Biodiversity, Ecosystem Services or Both?’ (2014) 172 Biological Conservation 65. 5 JD van der Ploeg, ‘Farmers’ Upheaval, Climate Crisis and Populism’ (2020) 47 The Journal of Peasant Studies 589.

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In this context, the EU’s biodiversity strategy for the period leading up to 2030 stresses the importance of working with farmers to ‘support and incentivize the transition to fully sustainable practices’.6 This includes the important objective of ‘bringing nature back to agricultural land’.7 A major challenge now exists in identifying what types of law and policy instruments may most effectively assist in achieving such environmental objectives. One of the major policy instruments presently used by EU Member States is that of ‘agri-environmental schemes’. In short, these schemes allow farmers to voluntarily sign up for subsidized measures that may help them to ‘preserve and promote the necessary changes to agricultural practices that make a positive contribution to the environment and climate’.8 Thus far the ecological results of such voluntarism-based agri-environmental schemes across the EU have been described as ‘underwhelming’, however.9 Crucially, existing schemes presently appear insufficiently capable of incentivizing farmers to bring about the ‘necessary management changes to improve biodiversity performance’.10 This raises important questions on how agri-environmental schemes can be made more effective to help bridge ambition and reality in agri-environmental governance. This chapter takes a governance lens to study ‘the initiatives of, and interactions between, farmers, governments, and other actors, and how these affect farmers’ choices and behaviour’.11 More specifically, this chapter empirically assesses the potential of bridging ambition and reality in voluntarism-based agri-environmental schemes through new forms of

6 European Commission, ‘Factsheet; Bringing Nature Back Into Our Lives: EU 2030 Biodiversity Strategy’ (2020). 7 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘EU Biodiversity Strategy for 2030, Bringing Nature Back Into Our Lives’ COM/2020/380 final, 7. 8 Council Regulation 1305/2013/EU of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) [2013] OJ L 347, art 28(1). 9 AJ McKenzie and others, ‘FORUM: Landscape-scale Conservation: Collaborative Agri-environment Schemes Could Benefit Both Biodiversity and Ecosystem Services, But Will Farmers Be Willing to Participate?’ (2013) 50 Journal of Applied Ecology 1274, 1274. 10 European Court of Auditors, ‘Biodiversity on Farmland: CAP Contribution Has Not Halted the Decline. Special Report no 13, 2020’ (Publications Office of the European Union 2020) 11; See also European Court of Auditors, Is Agri-Environment Support Well Designed and Managed? (Publications Office of the European Union 2011). 11 HAC Runhaar and others, ‘Promoting Nature Conservation by Dutch Farmers: A Governance Perspective’ (2017) 15 International Journal of Agricultural Sustainability 264, 265.

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‘collaborative governance’.12 Such governance arrangements embody the ‘involvement of governmental and non-governmental actors in the processes and structures of decision making and management at the scheme level’.13 Collaborative agri-environmental schemes are on the rise in the EU, as illustrated by various initiatives in, among others, Belgium, Germany and Ireland,14 and their potential effectiveness is increasingly recognized in the literature.15 Although the issue is of global relevance, this chapter examines the theme of voluntarism in agri-environmental governance with a focus on the Netherlands. Two reasons explain this focus. First, in 2016, the Netherlands implemented a collaborative agri-environmental governance model that is in many ways unique in an EU and even a global context, as will be further explained below.16 Second, since 1950 the average population numbers of all wild mammals, butterflies and birds in the country have decreased by half, highlighting the pressing need to bring nature back to agricultural land.17 As the bulk of these species have their main habitats on productive agricultural land, comprising more than 60 per cent of the country’s territory,18 farmers play a significant role in their conservation.19 The national findings of this study may, in turn, act as a catalyst for further research into the potential of

12 K Prager, ‘Agri-environmental Collaboratives for Landscape Management in Europe’ (2015) 12 Current Opinion in Environmental Sustainability 59, 62; JR Franks and A McGloin, ‘Joint Submissions, Output Related Payments and Environmental Co-operatives: Can the Dutch Experience Innovate UK Agri-environment Policy?’ (2007) 50 Journal of Environmental Planning and Management 233. 13 J Westerink and others, ‘Collaborative Governance Arrangements to Deliver Spatially Coordinated Agri-environmental Management’ [2017] Land Use Policy 69, 1777. 14 See, for example, U Latacz-Lohmann and others, ‘Designing an Effective Agri-environment Climate Policy as Part of the Post-2020 EU Common Agricultural Policy’ [2019] Berichte über Landwirtschaft – Zeitschrift für Agrarpolitik und Landwirtschaft 91; X Arnauld de Sartre, M Charbonneau and O Charrier, ‘How Ecosystem Services and Agroecology Are Greening French Agriculture through Its Reterritorialization’ (2019) 24 Ecology and Society; Burren Programme, ‘Our Approach’ http://​burrenprogramme​.com/​the​-programme/​our​-approach/​ accessed 7 June 2021. 15 Prager (n 12); Franks and McGloin (n 12). 16 See, in this context, Westerink and others (n 13). 17 E van Norren, J Dekker and H Limpens, Basisrapport Rode Lijst Zoogdieren 2020 volgens Nederlandse en IUCN-criteria (Zoogdiervereniging 2020) 8. 18 G de Snoo and H van der Windt, ‘Ontwikkeling natuurbescherming op boerenland en in reservaten’ in G de Snoo and others, Agrarisch Natuurbeheer in Nederland: Principes, Resultaten En Perspectieven (Wageningen Academic Publishers 2016) 45. 19 D Melman and others, ‘Weidevogels – op weg naar kerngebieden’ in G de Snoo and others, Agrarisch Natuurbeheer in Nederland: Principes, Resultaten En Perspectieven (Wageningen Academic Publishers 2016) 139.

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collaborative agri-environmental schemes for the future of environmental law at an EU and even global level. In terms of structure, first, the background and ambitions of the new Dutch agri-environmental governance model will briefly be outlined. Subsequently the theoretical underpinnings of the study are detailed, as well as the methodology. This is followed by a presentation of the main results and a discussion of the findings, accompanied by a selection of policy recommendations. The chapter finishes with a brief conclusion.

2.

THE NEW DUTCH AGRI-ENVIRONMENTAL MODEL

2.1

Introducing the New Governance Model

As part of the Common Agricultural Policy (‘CAP’), all EU Member States are required to implement their own agri-environmental subsidy scheme, which they can design in ‘accordance with their national, regional or local specific needs and priorities’.20 In 2016, the Netherlands introduced an agri-environmental scheme that pushes collaboration between the government and farmers, as well as other non-governmental actors, in new and innovative ways. Since 2016, the government only concludes agri-environmental subsidy contracts with so-called agricultural collectives: certified conservation organizations composed of farmers and other landowners.21 The boards of these collectives are subsequently responsible for distributing these government subsidies among its members. For farmers, joining an agricultural collective in their local area is now the only way to participate in the Dutch agri-environmental subsidy scheme. Presently, 40 collectives are active, together covering the entire Dutch countryside. The Netherlands is unique in the degree to which regulatory competences formerly belonging to governmental actors have now been delegated fully or in part to these collectives, which are private actors. This includes tasks in the domains of rule-setting of agri-environmental measures, inspection of compliance by farmers and enforcement.22 There do

Regulation 1305/2013, article 28(1). In the literature, the terminology used to describe these farmer groups is not always consistent and ranges from ‘farmer collective’, ‘environmental cooperative’ and ‘agri-environmental collectives’. In this publication, the most literal translation of the Dutch name of ‘agrarische collectieven’ has been used. 22 P Terwan and others, The Cooperative Approach under the New Dutch Agri-environment Climate Scheme Background, Procedures and Legal and Institutional Implications (Ministry of Economic Affairs 2016) 10. 20 21

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not appear to be other EU or even global examples where private ‘groups of farmers’ have such regulatory competences.23 Furthermore, all interactions between government actors and individual farmers in the domain of agri-environmental governance, thus including the distribution of subsidies, go via the collectives, acting as it were as ‘intermediaries’.24 2.2

Between Ambitions and Reality in the New Scheme

The Dutch agri-environmental scheme has a high ambition, namely to contribute to the protection of, in total, 68 target species that have their habitats in agricultural landscapes, and which presently all have either an unfavourable or highly unfavourable conservation status.25 The Netherlands is required to protect these species under the EU Birds and Habitats Directives (‘Nature Directives’), making the agri-environmental scheme an explicit instrument to work towards the meeting of EU obligations.26 These two Nature Directives allow Member States the necessary discretion to decide what instruments will be employed to meet their overarching EU obligations – think, for instance, of designating protected nature sites under the ‘Natura 2000’ heading.27 Voluntary approaches, such as agri-environmental schemes, can be an important or even central part of the policy mix, as the case law of the Court of Justice of the EU established.28 At the same time, as the Court has repeatedly emphasized, Member States do have to demonstrate they are in fact taking all necessary measures to stop the decline of the protected species.29 This should be done in particular by ensuring a sufficient diversity

Westerink and others (n 12). See also KW Abbott, D Levi-faur and D Snidal, ‘Theorizing Regulatory Intermediaries: The RIT Model’ (2017) 670 The ANNALS of the American Academy of Political and Social Science 14. 25 For a background on the selection of these species, see Ministerie van Landbouw, Natuur en Voedselkwaliteit, Plattelandsontwikkelingsprogramma voor Nederland 2014-2020 (POP3) (2015) 207. 26 See: Economische Zaken and IPO, Internationale doelen biodiversiteit Agrarisch Natuur- en landschapsbeheer (ANLb) (27 February 2014). 27 H Schoukens and K Bastmeijer, ‘Species Protection in the European Union: How Strict Is Strict?’ in CH Born and others, The Habitats Directive in Its EU Environmental Law Context: European Nature’s Best Hope? (Routledge 2014) 130. 28 ibid. 29 See, for instance: Case C-418/04 Commission v Ireland [2007] ECLI:EU:C:2007:780; Case C-117/00 Commission v Ireland [2002] ECLI:EU:C:2002:366; Case C-166/97 Commission  v France [1999] ECLI:EU:C:1999:149; Case C-355/90 Commission of the European Communities v 23 24

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and area of habitats within and outside protected areas, including in agricultural landscapes.30 While it is still too early to draw conclusions as to the ecological effectiveness of the new Dutch scheme, various scholars have already questioned whether the Dutch scheme is sufficiently large (both in hectares engaged and budget available) and sufficiently embedded in other conservation policies to change current trends.31 A recent report by the Dutch Court of Auditors similarly found that agri-environmental land management presently takes place only in about 15 per cent of the ecologically promising areas for farmland bird conservation, suggesting the scheme is still not sufficiently attractive or inclusive to promote participation by farmers in exactly those areas where conservation measures are most needed.32

3.

ANALYTICAL FRAMEWORK: STEERING VOLUNTARISM THROUGH REGULATORY DESIGN

3.1

Participation in Voluntary Schemes

The performance of agri-environmental schemes is, as hinted at above, heavily dependent on voluntary participation decisions by farmers.33 As Runhaar and others also note, farmers do not automatically adopt conservation measures or participate in agri-environmental schemes, making it particularly worthwhile to study the various conditions that ‘affect the performance of nature conservation governance’.34 In assessing the potential of bridging policy ambitions and voluntarism-based schemes through collaborative governance, this chapter focuses specifically on how such governance arrangements may influence

Kingdom of Spain [1993] ECLI:EU:C:1993:331; Case C-166/97 Commission v France [1999] ECLI:EU:C:1999:149. 30 See: G van Hoorick, ‘Biodiversity Outside Protected Areas: An Outlaw Waiting to Be Saved?’ in C-H Born and others, The Habitats Directive in Its EU Environmental Law Context: European Nature’s Best Hope? (Routledge 2014) 458ff. 31 See: C van Turnhout, R Foppen and D Zoetebier, Recente trends van weidevogels in relatie tot beheer (Sovon Vogelonderzoek Nederland 2019) Sovon-rapport 2019/85, 5–6; CBS, PBL, RIVM, WUR, ‘Farmland Bird Indicator 1915–2019’ (Statistics Netherlands (CBS), The Hague; PBL Netherlands Environmental Assessment Agency, The Hague, 2021). 32 Algemene Rekenkamer, Waar is de grutto? Rapport – Algemene Rekenkamer (De Algemene Rekenkamer 2021) 9. 33 Runhaar and others (n 11) 265. 34 ibid.

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a farmer’s motivation to commit to a scheme.35 Building on behavioural science literature, motivation is understood here as a concept that explains the ‘initiation, direction, intensity, persistence and quality’ of people’s behaviour.36 As Brophy further adds, people’s motives can be approached as hypothetical constructs that help ‘explain why people do what they do’.37 Self-Determination Theory adds that a distinction can be made between ‘intrinsic motivation’, that is, doing something because it is ‘inherently interesting or enjoyable’, and ‘extrinsic motivation’, meaning doing something for reasons ‘other than inherent satisfactions’.38 When joining an agricultural collective, farmers sign up to participate in a joint undertaking to pursue collective (environmental) goals. Batson, Ahmad and Tsang distinguish four types of motivation for why people may choose to participate in activities with such collective goals, namely: – Egoism: the goal of participation is increasing a person’s own welfare; – Altruism: the goal of participation is increasing another person’s welfare; – Collectivism: the goal of participation is increasing the welfare of a broader group; – Principlism: the goal of participation is to uphold a person’s moral principle(s).39 In this chapter, these four motivations are used as lenses for an explorative study of how this new Dutch agri-environmental governance model affects farmers’ participation in agri-environmental schemes. 3.2

Linking Motivation and Regulatory Design

Existing literature has examined farmers’ motivations mainly from social and economic perspectives, emphasizing for instance the importance of financial

35 Note: Runhaar and others also distinguish demand, ability and legitimacy as factors explaining why farmers do or do not join agri-environmental schemes. While this research focuses on the aspect of motivation, it is important to acknowledge that these other factors are also highly important and often interlinked. For example, without demand, as expressed in available subsidies, farmers may not be able to participate in a scheme – despite being motivated to: see ibid 268. 36 JE Brophy, Motivating Students to Learn (Routledge 2013) 3. 37 ibid. 38 RM Ryan and EL Deci, ‘Intrinsic and Extrinsic Motivation from a Self-Determination Theory Perspective: Definitions, Theory, Practices, and Future Directions’ (2020) 61 Contemporary Educational Psychology 101860, 2. 39 CD Batson, N Ahmad and J-A Tsang, ‘Four Motives for Community Involvement’ (2002) 58 Journal of Social Issues 429.

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drivers.40 This study adds a socio-legal perspective, linking motivation with regulatory design. In doing so, the study builds on earlier research by Aarts and van Woerkum, who have demonstrated that a crucial determinant for farmers in deciding to participate in an agri-environmental scheme is scheme flexibility. Such flexibility means, among others that farmers are given the possibility to match the scheme to the local situation of their business.41 As Siebert and others note: ‘scheme options that insufficiently take account of variation in farm environments often lead to disdain on the part of the farmer and, sooner or later, to non-participation.’42 This links in with broader findings by Kingston and others, who found that conservation farming schemes that have regard to the specific characteristics of the protected habitats or species at issue, and involve farmers, can ‘crowd in’ pro-environmental motivations.43 At the same time, stringent regulatory design and regulatory actions, for instance the ‘loss of autonomy induced by sanctioning’, may result in the ‘crowding out’ of farmers, causing them to stop participating in a scheme.44 3.3

Research Methodology

The empirical data collected for this study consists of 35 semi-structured, in-depth interviews with board members of three agricultural collectives, participating farmers, and a range of public and private stakeholders, including government officials and environmental NGO staff.45 The data collection 40 See, for example, R Barghusen and others, ‘Motivations of Farmers to Participate in Collective Agri-Environmental Schemes: The Case of Dutch Agricultural Collectives’ (2021) 17 Ecosystems and People 539; AM Lokhorst and others, ‘What’s in It for Me? Motivational Differences between Farmers’ Subsidised and Non-subsidised Conservation Practices’ (2011) 60 Applied Psychology 337; GA Wilson and K Hart, ‘Financial Imperative or Conservation Concern? EU Farmers’ Motivations for Participation in Voluntary Agri-environmental Schemes’ (2000) 32 Environment and Planning A: Economy and Space 2161. 41 MNC Aarts and CMJ van Woerkum, ‘Nature Management, Policy Making and Communication’ [2000] Communicating Nature Conservation 27. 42 R Siebert, M Toogood and A Knierim, ‘Factors Affecting European Farmers’ Participation in Biodiversity Policies’ (2006) 46 Sociologia Ruralis 318, 332. 43 S Kingston, E Alblas, M Callaghan and J Foulon, ‘Magnetic Law: Designing Environmental Enforcement Laws to Encourage Us to Go Further’ [2021] Regulation & Governance 17. 44 ibid; see also Y Feldman and O Perez, ‘Motivating Environmental Action in a Pluralistic Regulatory Environment: An Experimental Study of Framing, Crowding Out, and Institutional Effects in the Context of Recycling Policies’ (2012) 46 Law & Society Review 405. 45 The research has received ethical approval by the University College Dublin's Office of Research Ethics under Research Ethics Reference Number HS-E-19-143_Alblas-Kingston.

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Table 15.1

Main characteristics of the case studies

Agricultural

Poldernatuur

Coöperatie Collectief

Collectief Midden

collective

Zeeland (‘PnZ’)

Hoeksche Waard

Overijssel (‘CMO’)

(‘CCHW’) Province

Zeeland

Zuid-Holland

Overijssel

Geographical

Province-wide

One of 8 collectives in the

One of 3 collectives in the

focus

province

province

Size

350 farmers

90 farmers

400 farmers

Yearly budget

2.2 million euros

0.6 million euros

1.3 million euros

Agricultural

Predominantly arable

Mix of arable and grassland 

Predominantly grassland

context

land

was completed in the period July 2019–July 2021 and was complemented by field visits, as well as desk-study research and documentary analysis.46 Three agricultural collectives were purposely selected as case studies, with the aim of balancing comparability and empirical heterogeneity. Their names are Poldernatuur Zeeland, Coöperatie Collectief Hoeksche Waard and Collectief Midden Overijssel. Individuals were invited to take part in an interview through purposive sampling. Interviews lasted an hour on average and the majority were conducted in person; particularly during the unfolding of the Covid-19 pandemic, however, interviews were mainly conducted online, via Zoom or Skype. Each interview was carried out in Dutch, transcribed, and subsequently translated into English by the author. The textual data was manually coded and analysed through applied thematic analysis, linking the findings to the main categories of motivations distinguished above.47

4. RESULTS 4.1

Introducing the Findings

The section below presents an explorative analysis of the motivations of Dutch farmers to voluntarily participate (or not) in the State’s agri-environmental subsidy scheme. Particular attention is paid to the specific governance context of the collective model in the Netherlands, in which key regulatory responsibilities have been delegated to agricultural collectives mediating between public actors and individual farmers. The results section is structured around 46 RK Yin, Case Study Research and Applications: Design and Methods (SAGE Publications 2017) 46ff. 47 G Guest, KM MacQueen and EE Namey, Applied Thematic Analysis (SAGE 2011).

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the four main motivations for why people may participate in activities with collective goals, as distinguished by Batson, Ahmad and Tsang.48 4.2

Egoism: Participating to Increase a Person’s Own Welfare

Various observations in the data link first and foremost to the motivation of increasing a person’s own welfare. Financially oriented considerations are an obvious example here; for instance, participating in the agri-environmental scheme to generate income from ‘less productive’ parts of agricultural land. The subsidies cover the income foregone for agricultural production, and so one participant also emphasized a risk-balancing dimension: ‘sometimes, if the price of potatoes is low, the income you get from the field margins is even higher than you would get from your crops.’49 A second farmer nuanced the notion that agri-environmental subsidies lead to actual financial gains, however: ‘Some say: it’s 10–12,000 euros in subsidies, that is a lot of money. But if you look at the work involved and the income foregone, then I can’t say my decision to participate is financially motivated.’50 In this context, it was emphasized by interviewees that it is often the farmers that ‘are already making a profit that will generally be willing to commit to agri-environmental land management, not the farmers that are hardly making ends meet’.51 As became clear, the financial compensation presently on offer is often not sufficiently attractive to also convince this latter group to join. Another more egoism-oriented motivation observed is that, through participation in the scheme, farmers can demonstrate compliance with State-based laws as well as private sustainability standards. For instance, farmers who make use of chemical plant protection products on their land are required by law to make use of a specific, costly field crop-sprayer to prevent chemicals from leaking into surrounding waterways. This requirement does not apply to farmers who have a field margin adjacent to their productive parcels, as these field margins act as a barrier for the chemicals that would otherwise leak into waterways. Field margins are one of the subsidized measures under the agri-environmental scheme, meaning participating farmers not only have the opportunity to save on the expensive machinery otherwise required, but also get financial compensation for their field margins. Similarly, farmers participating in the agri-environmental scheme can use this to automatically obtain a market-based ‘On the way to PlanetProof’ environmental label for 50 51 2020. 48 49

Batson, Ahmad and Tsang (n 39). Interview with participating farmer 1 CCHW, 10 January 2020. Interview with participating farmer 2 CCHW, 24 August 2020. Interview with field coordinator/inspector 1 cooperative CCHW, 16 January

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more sustainable produce, which adds a premium to the price received for agricultural produce. Various threats to more egoism-based motivations were also noted. First, farmers who see participation in agri-environmental land management as purely a financial consideration, or for instance a ‘compulsory chore’ required to meet the applicable sustainability standards, were found to often have little knowledge as to what is required from them in terms of land management, and ‘little motivation to find out’. 52 Complex and overly stringent regulations were found to easily scare off such participants and to crowd out participation.53 Several farmers interviewed further voiced that, over the years, there have been various policy changes, which in some cases meant the funding for specific types of agri-environmental land management was discontinued.54 This uncertainty as to whether funding would continue gave rise to significant unrest and negatively impacted farmers’ motivation to participate in the scheme.55 4.3

Altruism: Participating to Increase Another Person’s Welfare

Within the collectives studied, altruism-based motivations were also observed. Each collective employs so-called field coordinators, responsible for identifying and contracting farmers for agri-environmental measures. The data showed that farmers’ relationships with these coordinators could be an important driver of participation. As one of the participating farmers explained: ‘they know you, you can enter into conversation with them […] you wouldn’t as easily call up a government agency somewhere far away as you would someone you know here in Zeeland.’56 In this context, various respondents emphasized the value of having field coordinators that ‘speak the language’ of the farmers and understand a farmer’s reality.57 In fact, farmers often appeared more motivated to engage in agri-environmental land management when a field coordinator asked, as opposed to when a public body was involved: ‘all those EU rules, all the government interference […] the collective is made up of other farmers, they understand things better.’58 Similar sentiments were voiced by the director of Collective Midden Overijssel: ‘I have spoken to farmers that were so dis-

Interview with participating farmer 2 CMO, 6 April 2021. ibid; interview with participating farmer 1 CCHW, 10 January 2020. 54 ibid. 55 ibid. 56 Interview with participating farmer 1 PnZ, 11 February 2021. 57 Interview with participating farmer 1 CCHW, 10 January 2020; interview with inspector cooperative CMO, 10 May 2021. 58 Interview with participating farmer 1 CCHW, 10 January 2020. 52 53

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trustful of government agencies; anything that was related to the government was wrong. I told them: “it is still the government that provides the funding, if you want to do things differently, you will need the government too”.’59 For the participating farmers, dealing with a field coordinator from the collective instead of dealing directly with governmental actors thus appeared a particularly conducive factor for participating in agri-environmental management. Similarly, various respondents noted the important added value of the collective in reducing administrative and other barriers for farmers, noting for instance that ‘the collective sows the seeds, takes care of the upkeep […] You have to make your land available, but for that you get compensated.’60 As became clear, however, the collective still must work hard to maintain the trust of the participants. For example, at the start of the new governance model in 2016, one of the studied collectives was not able to organize payment of farmers at the agreed time, which was found to have ‘very negative implications for the participants’ support base’.61 4.4

Collectivism: Participating to Increase the Welfare of a Broader Group

Concerning collectivist considerations, two broader groups appeared particularly relevant for farmers: the other members of the collective, and society at large. Starting with the former, the collective was named as a central place for mutual learning and knowledge sharing: ‘you must keep the people that are motivated together, so they can motivate each other even more. That’s a key added value of the collective.’62 In this context, the collective provides a platform through which farmers can work together towards shared goals.63 As one farmer emphasized: ‘you really feel like you’re in it together, which is a real added value to me.’64 At the same time, several respondents voiced that only a small minority of the participants actually show up to group meetings, and that cooperation and contact between participating farmers could be strengthened further.65 In relation to the second group, society at large, one farmer expressly stated that ‘if you can create something that society also enjoys, that is a big advan-

Interview with director cooperative CMO, 1 February 2021. Interview with participating farmer 1 CCHW, 10 January 2020. 61 Interview with participating farmer 2 CMO, 6 April 2021. 62 Interview with participating farmer 1 PnZ, 11 February 2021. 63 Interview with project coordinator PnZ, 4 June 2021. 64 Interview with participating farmer 1 PnZ, 11 February 2021. 65 Interview with participating farmer 1 CCHW, 10 January 2020; interview with inspector cooperative CMO, 10 May 2021. 59 60

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tage’.66 An example is that of flower-rich field margins, with another farmer stating: ‘it is always better to have a flower-rich field margin close to public roads, as opposed to the back of your land where no one sees it. The citizens passing by are, after all, the ones paying for it. So they should be able to enjoy it too.’67 A particular concern raised by farmers carrying out such field margin management, however, concerns the increased pressure from weeds involved when planting field margins at the same place each year. Such weeds can in turn also infiltrate the productive parts adjacent to field margins, resulting in reduced overall profits. The simplest way to circumvent this issue would be to rotate the field margins over the years, placing them not only in areas where they can be seen by the public, but also in other parts of agricultural parcels. This could, however, come at a cost to the degree to which the broader public can see and enjoy the field margins. 4.5

Principlism: Participating to Uphold a Person’s Moral Principle(s)

Throughout the interviews, the importance of having an intrinsic, morals-based motivation to carry out nature conservation work was underlined. As one farmer stated, for instance: ‘I preserve the field margin over winter, and I’m always amazed by the number of birds it attracts over the winter period. I don’t get a penny extra for it, but I don’t do it for financial reasons.’68 The three collectives studied were all found to employ a range of instruments to influence the intrinsic motivation of farmers, from newsletters to personal guidance, and from getting farmers involved in biodiversity monitoring to carrying out on-the-spot checks to assess compliance. As was explained by the project coordinator of Collective Poldernatuur Zeeland: ‘The idea is: farmers are used to cultivating crops, so now we’re cultivating Partridges […] We want farmers to say: I get compensation, I am working on Partridge management here. That they’re just as proud of that.69 For farmers, a core risk that threatened their principle-based motivations is distrust in, particularly, government agencies, and loss of autonomy. An example was raised by a farmer who had been part of a longstanding farmer-led initiative to create hedgerows alongside arable land. This initiative was incorporated in the national agri-environmental scheme in 2016, meaning the farmers would as of that year receive State subsidies for their hedgerows.

Interview with participating farmer 2 CCHW, 24 August 2020. Interview with participating farmer 1 CCHW, 10 January 2020. 68 ibid. 69 Interview with project coordinator cooperative PnZ, 4 June 2021. 66 67

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A government body subsequently conducted aerial inspections via satellite and concluded that the size of this respondent’s hedgerows was not in compliance with set rules, ultimately resulting in cuts to the farmer’s subsidies. The respondent argued he was in compliance, however, stating that the method of inspection (via satellite images) led to a distorted image of the situation on the ground. As he concluded: This was our own initiative, which we set up ourselves and everyone was enthusiastic about. We made costs and put in effort. And at the end of the road, the government tells you they won’t be paying. With those kinds of experiences, I really have the tendency to tell my colleagues: ‘don’t participate in the [scheme] because they will only screw you over.’70

Among the farmers interviewed, there was a much greater deal of trust in the capability of inspectors working for the agricultural collectives, as opposed to State inspectors, to assess compliance with the rules. In particular, the expertise of such inspectors of the agricultural collective – who often have a farming background or are still ‘colleague-farmers’ – was repeatedly noted, while it was recognized that these inspectors are as strict or even stricter than government agencies because they want to achieve ‘ecological quality’.71 In addition, respondents noted the less hierarchical setting of inspections by the collectives, in which inspections are used more as a device for guiding and educating farmers as opposed to purely assessing compliance with the letter of the applicable rules.72

5. DISCUSSION 5.1

Condensing the Findings

Looking at the results, it became clear that all four motivations are represented to a greater or lesser degree in the data. This is in line with earlier scholarship, in which it was noted that economic (egoim-based) considerations are important, but are not the only factor determining farmers’ decision-making on joining agri-environmental subsidy schemes.73 In Table 15.2, the main results are presented, structured along the four studied motivations. Interview with participating farmer 1 PnZ, 11 February 2021. ibid; Interview with participating farmer 1 CCHW, 10 January 2020; Interview with participating farmer 2 CCHW, 24 August 202; Interview with field coordinator/ inspector 1 cooperative CCHW, 16 January 2020. 72 Interview with participating farmer 1 CCHW, 10 January 2020; Interview with participating farmer 2 CCHW, 24 August 2020. 73 Siebert, Toogood and Knierim (n 42). 70 71

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Table 15.2

Crowding-in and crowding-out factors for farmers’ participation

Category

Crowding-in factors

Crowding-out factors

Egoism

Financial compensation.

Policy changes leading to funding being

Meeting environmental laws and

discontinued.

private sustainability standards.

Agri-environmental land management not being economically viable. Overly complex rules, land management being perceived as ‘compulsory chore’.

Altruism Collectivism

Close relations with the collective’s

Farmers losing trust in their collective, for

field coordinators.

instance due to financial misadministration.

Creating something that ‘society also

Practical concerns (e.g. weeds), making it

enjoys’.

impossible to carry out measures where society

Working towards shared goals, ‘being

can enjoy them.

in it together’.

Farmers not being actively involved in the collective, resulting in lack of community feeling.

Principlism

Intrinsic motivation to protect nature

Loss of autonomy (e.g. through sanctioning),

based on moral convictions.

reducing farmers’ will to act based on their principles.

In analysing these findings, a first observation is that, where previous studies have highlighted the importance of particularly economic and environmental motivations,74 this study also showed the many important connections between motivation and regulatory design. For instance, being able to meet broader sustainability laws and private standards was a conducive factor for farmers to also participate in the agri-environmental scheme. Frequent policy changes, as well as regulatory complexity in the form of overly stringent rules, were found however to crowd out farmers’ participation. Such findings highlight the importance of sensitizing agri-environmental schemes to a farmer’s ‘lived reality’.75 This resonates with earlier work by Siebert, Toogood and Knierim, who found: Many biodiversity measures tend to rely on unreflexive assumptions about farming: that the measures can be accomplished regardless of a difference in social milieu. Those policies implicitly standardise behaviour and keep it as a constant within

See Barghusen and others (n 40); Lokhorst and others (n 40); Wilson and Hart (n

74

40).

ibid 334; See also Aarts and van Woerkum (n 41); Kingston and others (n 43).

75

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measures and schemes, thereby oversimplifying the complex social/natural network in which the farmer exists.76

In this context, the empirical data highlights how collaborative governance can help to crowd in participation in agri-environmental schemes, precisely because it allows local (private) actors to take a more central role in customizing the scheme based on a ‘multi-factorial, interactive understanding’ of farmers in their area.77 For each of the motivation categories, it became clear that collectives can have a strong potential impact on farmers’ motivations. For instance, the collectives help farmers identify funding opportunities (egoism), build personal relationships with participants (altruism), provide a platform for working together (collectivism) and can contribute to promoting pro-environmental attitudes through personal communication and guidance (principlism). 5.2

Policy Recommendations

The findings of this study can be translated into a selection of policy recommendations. First, without necessarily taking the Dutch model as a blueprint for other Member States, it does seem clear that moving towards more collaborative agri-environmental schemes approaches that are fine-tuned to regional circumstances could already be a major way to enhance the effectiveness of existing schemes.78 The transition towards the new Common Agricultural Policy in force as of 2023 may provide fertile soil for Member States to further assess the possibilities in terms of collaborative governance arrangements. The second recommendation is to further investigate the design of regulatory arrangements that can accommodate local variations, sensitizing schemes to the ‘lived realities’ and the ‘complex social/natural network in which the farmer exists’.79 In addition, frequent policy changes without clear buy-in from farmers may risk losing the support base, highlighting the importance of ensuring that regulatees in fact understand and endorse the policy goals set.80 Third, while this study highlighted how collaborative governance arrangements may help to crowd in participation in agri-environmental schemes, it is important to keep a close track on whether schemes actually deliver on

Siebert, Toogood and Knierim (n 42) 334. ibid 332. 78 See, in this context: European Commission, Commission’s Guidance Document on the new cooperation measure included in Regulation 1305/2013 (Brussels 2014) 4. 79 Siebert, Toogood and Knierim (n 42) 334. 80 See also OECD, Co-Operative Approaches to Sustainable Agriculture (OECD Publishing 1998) 16. 76 77

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set environmental policy objectives. For the latter purpose, the recommendation is to further invest in prolonged monitoring of the ecological effects of agri-environmental land management, comparing these findings also with areas without such land management.81 This would also help promote a better understanding of where exactly voluntarism-based schemes can contribute towards the meeting of overarching environmental objectives, and in what areas other policy instruments such as Natura 2000 designation and strict nature protection may be more suited. 5.3 Reflection It is important to recognize different limitations of the present study design. First, while the qualitative approach enables the creation of ‘thick’ descriptions of people’s lived experiences, the generalizability of the findings is evidently limited. In addition, the study sample consists first and foremost of farmers that do participate in the agri-environmental scheme, meaning the opinions of farmers that have decided not to participate are much less well represented. These two issues could be circumvented through future research by broadening the research population and potentially including a quantitative element. In addition, it would be interesting to examine how and to what extent the motivations of farmers from other countries would compare to the sample presented here, as a way of testing the potential of collaborative governance arrangements also at an international level.

6.

CONCLUSION: WHAT FUTURE FOR VOLUNTARISM IN AGRI-ENVIRONMENTAL GOVERNANCE?

In attempts to bring ‘nature back to agricultural land’82 and accelerate the transition to an environmentally friendly food system,83 it is of crucial importance to identify the most effective environmental law and policy instruments to achieve these sustainability goals. While the use of voluntarism-based policy instruments such as agri-environmental schemes is widespread across the EU, thus far the ecological results are ‘underwhelming’.84 This chapter empirically assessed the potential of bridging ambition and reality in voluntarism-based agri-environmental schemes through new forms 81 See, in this context: C van Turnhout, R Foppen and D Zoetebier, Recente trends van weidevogels in relatie tot beheer (Sovon Vogelonderzoek Nederland 2019) 5–6. 82 ‘EU Biodiversity Strategy’ (n 7) 7. 83 ‘Farm to Fork Strategy’ (n 2). 84 McKenzie and others (n 9) 1274.

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of collaborative governance. As a case study, it used the Netherlands; a country in which biodiversity in agricultural landscapes is rapidly declining, but which has recently implemented a new and innovative collaborative agri-environmental scheme. This scheme is unique as regulatory responsibilities have been delegated to private ‘agricultural collectives’: certified conservation organizations with farmers and other landowners as members. Employing a socio-legal study design, the study showed how collaborative governance arrangements may help crowd in participation in agri-environmental schemes, because it allows local (private) actors to take a more central role in customizing the scheme based on what can be described as a ‘multi-factorial, interactive understanding’ of farmers in their area.85 Frequent policy changes, as well as regulatory complexity in the form of overly stringent rules, were however found to crowd out farmers’ participation. At the same time, it is important to keep a close track on whether all too flexible schemes in fact deliver on set environmental policy objectives. For the latter purpose in particular, a better understanding of the ecological effects of the scheme is needed. This would require prolonged monitoring and comparison with areas on which no agri-environmental land management takes place. It is clear that many challenges remain in regard to achieving a sustainable, environmentally friendly future for agriculture in the EU and beyond. The potential of achieving this ambitious goal may be bolstered through collaborative governance arrangements, but it remains to be seen whether such instruments alone are enough to meet the goals set. In this context, much work remains to be done in exploring what optimal law and policy mixes can guide the future of environmental law in agricultural contexts. Socio-legal research, allowing the study of environmental law on paper and in action, may prove a particularly useful tool in this exercise.

Siebert, Toogood and Knierim (n 42) 332.

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16. Groundwater relevance for Brazilian semiarid development in the northeast: the need for protective environmental laws Jose Irivaldo Alves Oliveira Silva 1. INTRODUCTION The Brazilian semiarid region is ideal for analyzing the impact of groundwater for human development and equity and for the formation of resilient territories, considering the process of climate change and also the large number of rural properties in existence. The question is: precisely what is the relevance of groundwater for survival in the Brazilian semiarid region? In the international context, there is a growing need to map more precisely the potential of groundwater to complement existing water systems or even to support increasing demand for water, especially from the viewpoint of production of food for the export market in a profile focused on more sophisticated agribusiness on a larger production scale.1 Groundwater has served to provide communities with adaptive mechanisms that assist in local and regional development, and their importance for the establishment of a milder reality is substantial, as it has been demonstrated that conventional urban systems have not reached these communities. However, it is essential to understand that these aquifers are fundamental for resilience in the process of climate change in regions with an ecosystem as delicate as the Brazilian semiarid region.2 Huge investments like the transposition of the 1 Jesiya NP, Girish Gopinath [2019] “A customized FuzzyAHP-GIS based DRASTIC-L model for intrinsic groundwater vulnerability assessment of urban and peri urban phreatic aquifer clusters” (8) 654–6 Groundwater for Sustainable Development www​.sciencedirect​.com/​science/​article/​abs/​pii/​S2352801X18303011 Accessed November 8, 2019. 2 Heba Abd el-AzizAbu-Bakr [2020] “Groundwater vulnerability assessment in different types of aquifers” 240 Agricultural Water Management https://​doi​.org/​10​ .1016/​j​.agwat​.2020​.106275 Accessed May 8, 2020.

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São Francisco River have not yet been used by these populations; in fact, such works have had a negative impact on groundwater. Presented in this chapter is a region of Brazil known as semiarid, in the portion corresponding to the northeast region of the country, whose rural life depends largely on reservoir waters and, mainly, wells drilled by governmental and non-governmental organizations. Where these structures do not exist, these populations survive by waiting for water that can be reserved in masonry structures known as slab cisterns, or by buying water or waiting for “pipa” cars, which are government-owned trucks providing water supply. The scarcity of more accessible water sources drives the inhabitants of this region to seek water from below-ground points, whose uses are multiple— notably, agricultural production and raising animals such as sheep, oxen, and cows. In this regard, Barati et al3 present the absence of intelligent governance on the balance of water stocks as an impediment to the survival of these systems. Local governments assist in the process of drilling urban and rural wells as a strategy to withstand the effects of drought. Although this region has benefited from the transposition of the São Francisco River, it only affects the installed water supply system, as there is no water utility network in rural areas. The communities in this region are consistently deprived of water supply and must use water from water trucks, which draw water from other reservoirs in and out of the state, as well as from drilled wells. Water in these places is precious in the face of periodic scarcity, and in consequence it needs to be well-managed. Since the soil is crystalline and very rocky, the water in this region has a high salinity.4 However, it is possible to install systems that assist in the management of this water and its waste, with the reuse of water being a concrete possibility, since this region needs all possible water supply to increase its level of resilience.5 Low rainfall throughout the year is an expected feature, and community planning is essential in view of existing water use. It is important to emphasize 3 Ali Akbar Barati, Hossein Azadi and Jürgen Scheffran [2019] “A system dynamics model of smart groundwater governance” (221) 502, 518 Agricultural Water Management  https://​doi​.org/​10​.1016/​j​.agwat​.2019​.03​.047 Accessed May 8, 2020. 4 Marie Eliza Zamberlan da Silva Rosangela Getirana Santana Marcio Guilhermetti, Ivens Camargo Filho, Eliana Haru Endo, Tânia Ueda-Nakamura, Celso Vataru Nakamura, Benedito Prado Dias Filho [2008] “Comparison of the bacteriological quality of tap water and bottled mineral water” (2011) International Journal of Hygiene and Environmental Health Issues 5–6 504–9 https://​doi​.org/​10​.1016/​j​.ijheh​ .2007​.09​.004 Accessed May 8, 2020. 5 National Institute of Semiarid—INSA, “Estimated population of the Brazilian semiarid region 2017” (first published 2017) https://​portal​.insa​.gov​.br/​images/​imagens​ -noticias/​2017/​11/​MAPA​_POPULACAO​_2017​.pdf Accessed October 9, 2021.

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that the government maintains a “fresh water” program, which aims precisely to install desalination plants that are fundamental in complementing the process of distributing scarce water to semiarid communities. This policy is inserted in a context of mitigating the effects of drought or the absence of rainfall, and the need to provide communities with adaptive instruments to create resilience mechanisms for a more acute process of drought brought about by the dynamics of climate change. Therefore, we present here the results of our studies conducted in this region, and we stress the importance and the possibilities of the Master’s degree course in Water Resources Management and Regulation. The study was conducted mainly through this Master’s course, in partnership between the Federal University of Campina Grande and the São Paulo State University. This chapter aims to demonstrate the importance of groundwater for the development of a region that already has water scarcity as a reality in its daily life, where drought periods are very intense and water sources are fundamental to the maintenance of rural life.

2.

HUMAN AND ECONOMIC CONFIGURATION OF THE BRAZILIAN SEMIARID

2.1

Regional Characterization

The Brazilian semiarid is a region that has very peculiar characteristics, such as its vegetation, soil, and climate, which relate to a territory in an advanced process of desertification. In addition, the population density of the region is remarkable: its most well-populated territories have considerable urban and rural occupation. Figure 16.1, extracted from the public database of the Brazilian Institute of Geography and Statistics (IBGE), shows the current area, which is expanding and is under periodic review by the Northeast Development Superintendence (SUDENE). According to information from Resolution n. 115/2017 of the Ministry of National Integration (MIN), there are 1,265 municipalities in this semiarid region alone. The Brazilian semiarid is a region delimited by SUDENE (Northeast Development Superintendence) considering dominant climatic conditions of semi-dryness, especially rainfall. As a reflection of climatic conditions, the hydrography is fragile in its broad aspects and insufficient to sustain flowing rivers during long periods of absence of precipitation. The exception is the São Francisco River. Due to its hydrological characteristics, which allow its continuity throughout the year, the São Francisco River acquires a special significance for the riverside and Sertão zone populations. In 2002 implementation of the water transposition project for the São Francisco River basin began, with the diversion of part of its waters to two

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Source: Brazilian Institute of Geography and Statistics—IBGE, Brazilian semiarid region. 1:12 000 000 (Map 2017), Brazil, https://geoftp.ibge.gov.br/organizacao_do_territorio/estrutura_ territorial/semiarido_brasileiro/Situacao_23nov2017/mapa_Semiarido_2017_11_23.pdf accessed October 1, 2021.

Figure 16.1

Semiarid region in northeastern Brazil

axes, one to the north and one to the east.6 In 2017 the eastern axis part of the project was inaugurated, but it is still poorly functioning. This major project aims to ensure water supply for urban and rural communities. To date there have been no positive impacts for the rural population as the water is not benefiting rural communities.7 These communities essentially depend on groundwater and rainwater accumulated in cisterns and, in some cases, from reuse. It is interesting to note here the limited importance of the transposition of the São Francisco River to rural communities, since they have not yet benefited from these waters, and there are no prospects of this. Notably, many families 6 Jose Irivaldo Alves Oliveira Silva, “Ressignificação Ambiental e modernização ecológica no Semiárido: o projeto de integração e revitalização do São Francisco” (first published 2016, Hucitec), São Paulo. 7 Jose Irivaldo Alves Oliveira Silva, John Brehmer de Sousa Alves de Oliveira, “Água, meio ambiente e desenvolvimento” [2016] Raízes: Revista De Ciências Sociais E Econômicas (36)(1) 121,142 https://​doi​.org/​10​.37370/​raizes​.2016​.v36​.451 Accessed September 9, 2021.

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living in the area around the eastern axis, which is already in operation, depend on alternative sources of water to develop their family farming and animal husbandry. At 1.56 million km² (18.2 percent of the national territory), the northeast region of Brazil comprises most of the Brazilian semiarid, which is located in the central portion of this region and also beyond its limits, encompassing the states of Piauí, Ceará, Rio Grande do Norte, Paraíba, Pernambuco, Alagoas, Sergipe, Bahia, and the northern part of the Minas Gerais state (southeast region).8 In 2014 the population reached almost 24 million inhabitants, according to data from the National Institute of Semiarid. According to data collected in 2010, the Brazilian northeast has maximum annual precipitation of 800 mm, average sunshine of 2,800 h/year, average annual temperatures of 23°C to 27°C, average evaporation of 2,000 mm/year and average relative humidity around 50 per cent. The Brazilian semiarid characteristically presents strong insolation, relatively high temperatures and rainfall regime marked by scarcity, irregularity, and concentration of rainfall within a short period—on average three to four months—presenting insufficient volumes of water in its springs to meet the needs of the population.9 Therefore, it is in this context that alternative water sources have a positive impact and are indispensable for local and regional development. 2.2

Social, Economic and Environmental Data

This region has very strong social vulnerability in relation to the other Brazilian regions, which is potentiated by the climatic situation and, consequently, by the periodic droughts; therefore, water stocks are essential for the mitigation of this vulnerability. The Institute for Applied Economic Research (IPEA) released a study in 201510 attesting that the northeast region is responsible for 8 José Almir Cirilo, “Políticas públicas de recursos hídricos para o semi-árido” [2008] Estudos Avançados 22 (63) www​.scielo​.br/​scielo​.php​?script​=​sci​_abstract​&​ pid​=​S0103​-40142008000200005​&​lng​=​en​&​nrm​=​iso​&​tlng​=​pt Accessed November 5, 2020; Brazilian Institute of Geography and Statistics—IBGE Brazilian Semiarid (first published 2018), www​.ibge​.gov​.br/​geociencias/​cartas​-e​-mapas/​mapas​-regionais/​ 15974​-semiarido​-brasileiro​.html​?​=​&​t​=​sobre. Accessed September 10, 2021. 9 Pedro Carlos Gama da Silva, Magna Soelma B. de Moura, Lúcia Helena Piedade Kiill, Luiza Teixeira de Lima Brito, Lúcio Alberto Pereira, Iêdo Bezerra Sa, Rebert Coelho Correia, Antônio Heriberto de C. Teixeira, Tony Jarbas Ferreira Cunha, Clóvis Guimarães Filho, “Caracterização do Semiárido brasileiro: fatores naturais e humanos” (first published 2010, Embrapa), “Semiárido brasileiro: pesquisa, desenvolvimento e inovação” Petrolina. 10 IPEA—Instituto de Pesquisa Econômica Aplicada, Atlas da vulnerabilidade social nos municípios brasileiros (first published 2015, IPEA), http://​ivs​.ipea​.gov​.br/​ images/​publicacoes/​Ivs/​publicacao​_atlas​_ivs​.pdf> Accessed December 10, 2020.

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72.4 percent of the total municipalities with social vulnerability or low social prosperity, which year after year keeps them on the sidelines of development in the rest of the country, which is concentrated in the south and southeast. The IPEA report points out that one of the factors that substantially contribute to this indicator of social vulnerability is lack of access to water and sanitation. These are basic items whose universalization was already part of goal 6 of the United Nations (UN) Millennium Development Goals (MDGs), having a direct relationship with the improvement of environmental quality and health.11 It is possible to perceive the seriousness of the situation, especially in the northern part of the country, with the best indicators being the southeast and the south. Poorer regions suffer from chronic access to water and sanitation indicators, which has in fact become commonplace under the responsibility of public managers who do not prioritize certain population groups—an important factor when thinking about the resilience of communities to climate change.12 The problem of access to water and sewage treatment is especially precarious in the semiarid region, this being a region in which several municipalities, and especially farmers, do not have access to water or sewage collection and treatment. It is important to be clear that this is the existing framework; solutions have been sought very slowly, which increases the vulnerability of the poorer communities. In this case, the semiarid is already affected by existing cyclical climate factors, and with the worsening effects of climate change the semiarid will certainly face more consequences, just as ecosystems will suffer losses. Consequently, it is necessary to think of adaptation and resilience as

11 Barbara Evans, “Understanding the urban poor’s vulnerabilities in sanitation and water supply” [2007] July 1–6 Financing Shelter Water and Sanitation www​.researchgate​.net/​publication/​265043187​_Understanding​_the​_Urban​_Poor​%27s​ _Vulnerabilities​_in​_Sanitation​_and​_Water​_Supply Accessed October 7 2021; Leo Heller, Priscila Neves-Silva, “O direito humano à água e ao esgotamento sanitário como instrumento para promoção da saúde de populações vulneráveis” [2016] Ciência & Saúde Coletiva, 21(6) 1861,1870 https://​dx​.doi​.org/​10​.1590/​1413​-81232015216​ .03422016 Accessed August 10, 2021. 12 Barbara Evans, “Understanding the urban poor’s vulnerabilities in sanitation and water supply” [2007] July 1–6 Financing Shelter Water and Sanitation www​.researchgate​.net/​publication/​265043187​_Understanding​_the​_Urban​_Poor​%27s​ _Vulnerabilities​_in​_Sanitation​_and​_Water​_Supply Accessed October 7, 2021; Jeremy Paul Kohlitz, Joanne Chong, Juliet Willetts, “Climate change vulnerability and resilience of water, sanitation, and hygiene services: a theoretical perspective” [2017] Journal of Water, Sanitation and Hygiene for Development June 1 (7)(2) 181,195 doi: https://​doi​.org/​10​.2166/​washdev​.2017​.134.

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elements to be inserted in medium-term public policy planning.13 Adger et al comment: we suggest that an adaptable society is characterized by awareness of diverse values, appreciation and understanding of specific and variable vulnerabilities to impacts, and acceptance of some loss through change. The ability to adapt is determined in part by the availability of technology and the capacity for learning but fundamentally by the ethics of the treatment of vulnerable people and places within societal decision-making structures.14

The data show that we have not yet begun or improved this adaptive capacity. It is necessary to interconnect the analysis of data, scenarios, and social, economic, and environmental variables in order to understand why a given region or territory does not have access to basic services such as water and sewage treatment. In general, it is clear that the average yield is lower in the northeast region than the others—even lower than the northern region. This is another factor that creates and characterizes its vulnerability. The 2019 Human Development Index report15 demonstrates and reinforces what has been revealed by showing that Brazil’s rankings in the human development quality index have stagnated or even declined (Table 16.1). It is possible to use the Municipal Human Development Index to complement our information by attesting that the northeastern states need to see an improvement in the quality of human development, which is directly connected with the basic services that the population should receive. Therefore, the picture of social, economic and environmental vulnerability of the Brazilian semiarid is characteristic, highlighting the environmental dimension. However, it is necessary to add the advance of desertification in this semiarid zone, either by loss of vegetation due to intensive and incorrect

13 Willian Neil Adger, “Vulnerability” [2006] (16) 268–81 Global Environmental Change www​.geos​.ed​.ac​.uk/​~nabo/​meetings/​glthec/​materials/​simpson/​GEC​_sdarticle2​ .pdf Accessed October 20, 2020; Willian Neil Adger, Surage Dessai, Marisa Goulden, Mike Hulme, Irene Lorenzoni, Donald R. Nelson, Lars Otto Naess, Johanna Wolf, Anita Wreford [2009] Are there social limits to adaptation to climate change? (93) 335, 354 Climatic Change https://​link​.springer​.com/​article/​10​.1007/​s10584​-008​-9520​ -z Accessed November 8, 2019. 14 Willian Neil Adger, Surage Dessai, Marisa Goulden, Mike Hulme, Irene Lorenzoni, Donald R. Nelson, Lars Otto Naess, Johanna Wolf, Anita Wreford [2009] Are there social limits to adaptation to climate change? (93) 335, 354 Climatic Change, p.350 https://​link​.springer​.com/​article/​10​.1007/​s10584​-008​-9520​-z> Accessed November 8, 2019. 15 United Nations Development Programme—UNDP, “Human Development Report 2019” (first published 2019) http://​hdr​.undp​.org/​sites/​default/​files/​hdr2019​.pdf Accessed November 15, 2020.

Groundwater relevance for Brazilian semiarid development in the northeast

Table 16.1

Municipal Human Development Index of Brazilian states MHDI

MHDI

INCOME

LONGEVITY

0.727

0.739

0.816

0.637

0.699

0.690

0.793

0.624

Sergipe

0.665

0.672

0.781

0.560

São Paulo

0.783

0.789

0.845

0.719

Santa Catarina

0.774

0.773

0.860

0.697

Roraima

0.707

0.695

0.809

0.628

Rondônia

0.690

0.712

0.800

0.577

Rio Grande do Sul

0.746

0.769

0.840

0.642

0.684

0.678

0.792

0.597

Rio de Janeiro

0.761

0.782

0.835

0.675

Piauí

0.646

0.635

0.777

0.547

Pernambuco

0.673

0.673

0.789

0.574

Pará

0.646

0.646

0.789

0.528

Paraná

0.749

0.757

0.830

0.668

Paraíba

0.658

0.656

0.783

0.555

Minas Gerais

0.731

0.730

0.838

0.638

Mato Grosso

0.725

0.732

0.821

0.635

Mato Grosso do Sul

0.729

0.740

0.833

0.629

Maranhão

0.639

0.612

0.757

0.562

Goiás

0.735

0.742

0.827

0.646

Distrito Federal

0.824

0.863

0.873

0.742

Ceará

0.682

0.651

0.793

0.615

Bahia

0.660

0.663

0.783

0.555

Amazonas

0.674

0.677

0.805

0.561

Amapá

0.708

0.694

0.813

0.629

Alagoas

0.631

0.641

0.755

0.520

Acre

0.663

0.671

0.777

0.559

PLACE

MHDI

Brasil Tocantins

Rio Grande do Norte

277

MHDI EDUCATION

Note: The numbers in the table represent the indices of income, education, and longevity, resulting in the Human Development Index. Programa das Nações Unidas para o Desenvolvimento—PNUD, “Índice de Desenvolvimento Humano Municipal Brasileiro” (first published 2013, PNUD) www.atlasbrasil.org.br/2013/data/rawData/publicacao_atlas_municipal_ pt.pdf Accessed November 5, 2020.

use of the soil, the lack of rainfall, or the very crystalline soil composition,

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as another variable that makes up the environmental variable.16 In addition, inadequate water management can cause or enhance desertification.17

3.

GROUNDWATER , THE DEFICIENCY OF REGULATION IN BRAZIL AND ITS IMPACT ON THE HUMAN DEVELOPMENT OF THE SEMIARID

The process of territorial vulnerability is characterized as demanding systemic or interconnected actions. However, in this scenario we see a growing importance of groundwater for human supply and economic development, mainly through agriculture. This is a global issue that needs to acquire the necessary status on the public agenda, because these water stocks are exposed to various forms of pollution, whether through irregular use and occupation of the soil, waterproofing, or diffuse pollution of all kinds, among others. The growing demand for energy, food, and water must permeate our daily lives going forward and should also inform decision makers and policy makers in their professional roles. Groundwater requires more effective management mechanisms and greater regulation, considering the need to make it more visible, especially in a local context, because of its local importance for human development, notably in regions such as the semiarid.18

16 Iedo Bezerra de Sá, Tony Jarbas Ferreira Cunha, Antônio Heriberto de Castro Teixeira, Francislene Angelotti, Marcos Antonio Drumond, “Processos de desertificação no semiárido brasileiro” (first publised 2010, Embrapa) www​.embrapa​.br/​ busca​-de​-publicacoes/​-/​publicacao/​861927/​processos​-de​-desertificacao​-no​-semiarido​ -brasileiro Accessed 9 septembre 2021; Aldrin Martin Perez-Marin, Arnóbio de Mendonça Barreto Cavalcante, Medeiros, Leonardo Bezerra de Melo Tinôco, Salomão Sousa de Medeiros, Ignácio Hérnan Salcedo, “Núcleos de desertificação no semiárido brasileiro: ocorrência natural ou antrópica?” [2012] Parc. Estrat. Brasília-DF (17) (34) 87, 106 Jan–Jun http://​seer​.cgee​.org​.br/​index​.php/​parcerias​_estrategicas/​article/​ viewFile/​ 671/​ 615 Accessed November 5, 2020; Jose Roberto de Lima, Antonio Rocha Magalhães, “Institucionalidade e governança para o combate à desertificação” (first published 2016, IPEA) http://​repositorio​.ipea​.gov​.br/​bitstream/​11058/​9287/​1/​ Institucionalidade​.pdf Accessed July 10, 2020. 17 Aldrin Martin Perez-Marin, Arnóbio de Mendonça Barreto Cavalcante, Medeiros, Leonardo Bezerra de Melo Tinôco, Salomão Sousa de Medeiros, Ignácio Hérnan Salcedo, ‘Núcleos de desertificação no semiárido brasileiro: ocorrência natural ou antrópica?’ [2012] Parc. Estrat. Brasília-DF (17)(34) 87,106 Jan–Jun http://​seer​.cgee​ .org​.br/​index​.php/​parcerias​_estrategicas/​article/​viewFile/​671/​615 Accessed November 5, 2020. 18 Sharon B. Megdal, “Invisible water: the importance of good groundwater governance and management” [2018] Clean Water 15 www​.nature​.com/​articles/​s41545​ -018​-0015​-9​.pdf> Accessed November 15, 2020.

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This is the most important aspect of our development model on important underground springs that need regulation so they can be properly managed, as a safety net that can assist humanity’s resilience to climate change.19 This stock of water needs to be taken care of and considered in both medium and long-term aspects. However, groundwater consumption has been growing both worldwide and in Brazil.20 The importance of regulating the sector, establishing clear rules regarding the use of these waters, imposing limits, and stipulating permits that must be verified is clear. Brazil faces a major dilemma, having large water resources but constantly suffering water scarcity: the result of the great urban development model.21 Groundwater is indicated as an alternative solution for diffuse supply, that is, for communities that are far away, dispersed, and do not have access to the

19 Emilio Custodio, “Effects of groundwater development on the environment” [2000] (111)(6), 107, 120 Boletín Geológico y Minero www​.igme​.es/​Boletin/​ 2000/​111​_6​-2000/​6​-EFFECTS​.pdf Accessed September 18, 2021; FAO—Food and Agricultura Organization, Groundwater management: The search for practical approaches (first published 2007) www​.fao​.org/​3/​y4502e/​y4502e00​.htm Accessed August 10, 2021]; Ricardo Hirata, JL Zoby, Amélia Fernandes, Reginaldo Bertolo, ‘Hidrogeología del Brasil: una breve crónica de las potencialidades, problemática y perspectivas’ [2006] Boletín Geológico y Minero (117)(1) 25, 36 http://​aguas​.igme​ .es/​Boletin/​2006/​117​_1​_2006/​Art​.2​.PDF Accessed September 10, 2019; Henry Vaux, “Groundwater under stress: the importance of management” [2011] Environ Earth Sci (62) 19, 23 https://​link​.springer​.com/​content/​pdf/​10​.1007​%2Fs12665​-010​-0490​-x​.pdf Accessed October 9, 2021. 20 Ricardo Hirata, JL Zoby, Amélia Fernandes, Reginaldo Bertolo, “Hidrogeología del Brasil: una breve crónica de las potencialidades, problemática y perspectivas” [2006] Boletín Geológico y Minero (117)(1) 25, 36. http://​aguas​.igme​.es/​Boletin/​2006/​ 117​_1​_2006/​Art​.2​.PDF Accessed September 10, 2019; Sharon B Megdal, “Invisible water: the importance of good groundwater governance and management” [2018] Clean Water 15 www​.nature​.com/​articles/​s41545​-018​-0015​-9​.pdf Accessed November 15, 2020; Trata Brasil Institute, “A revolução silenciosa das águas subterrâneas no Brasil: uma análise da importância do recurso e os riscos pela falta de saneamento” (First published 2019) www​.tratabrasil​.org​.br/​images/​estudos/​itb/​aguas​-subterraneas​-e​ -saneamento​-basico/​Estudo​_aguas​_subterraneas​_FINAL​.pdf Accessed November 15, 2020. 21 Ricardo Hirata, JL Zoby, Amélia Fernandes, Reginaldo Bertolo, ‘Hidrogeología del Brasil: una breve crónica de las potencialidades, problemática y perspectivas’ [2006] Boletín Geológico y Minero (117)(1) 25, 36 http://​aguas​.igme​.es/​Boletin/​2006/​ 117​_1​_2006/​Art​.2​.PDF Accessed September 10, 2019; Marielle Aparecida de Moura Raid, “Soluções técnica de abastecimento de água e modelos de gestão: um estudo em quinze localidade rurais brasileira” [2017] Master’s Degree UFMG Brazil, https://​ repositorio​.ufmg​.br/​handle/​1843/​BUOS​-AWWP8Q Accessed October 5, 2021.

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water supply network.22 In addition to this solution, it is necessary to adopt sanitation solutions that can directly impact the quality of extracted groundwater. Brazilian legislation establishes the National Water Resources Policy (PNRH), Law n. 9.433/1997, which, despite a set of regulatory instruments created for water management and governance, is lacking in groundwater regulation. So, we have no federal legislation about groundwater, although we have two large aquifers, the Guarani and the Alter do Chão. This means a lack of the very environmental regulation crucial for these ecosystems. It can be understood that the Brazilian legislation establishes who is responsible for dominating the groundwater, leaving it to the states of the federation to regulate these resources within its borders. It is up to the central government to take care of groundwater that crosses borders between states and between countries. Separated from this universe, groundwater with mineral properties is under the tutelage of the central government: a great contradiction.23 This model of decentralization of management and governance, at least in the semiarid region, does not have the expected effect, notably on groundwater. A large number of wells are drilled without authorization and therefore without accurate studies of their viability and flow potentiality. Some state laws provide regulation, but there is a lack of enforcement of these laws. Figure 16.2 below shows the precariousness of rural sanitation in Brazil. Highlighting the northeast region, specifically the semiarid, the importance of groundwater for this territory can be perceived. Groundwater is fundamental for the semiarid,24 mainly as a complementary system for small agricultural production. Without it, dependence on rain would be much higher and slab cisterns or other individualized water storage solutions would not be sufficient to supply populations. 22 Marielle Aparecida de Moura Raid, “Soluções técnica de abastecimento de água e modelos de gestão: um estudo em quinze localidade rurais brasileira” [2017] Master’s Degree UFMG Brazil, https://​repositorio​.ufmg​.br/​handle/​1843/​BUOS​-AWWP8Q> Accessed October 5, 2021. 23 Ricardo Hirata, JL Zoby, Amélia Fernandes, Reginaldo Bertolo, “Hidrogeología del Brasil: una breve crónica de las potencialidades, problemática y perspectivas” [2006] Boletín Geológico y Minero (117) (1) 25, 36. http://​aguas​.igme​.es/​Boletin/​2006/​ 117​_1​_2006/​Art​.2​.PDF Accessed September 10, 2019. 24 Aldo da C. Rebouças, “Água na região Nordeste: desperdício e escassez” [1997] Estudos avançados 11(29) www​.scielo​.br/​scielo​.php​?script​=​sci​_arttext​&​pid​ =​S0103​-40141997000100007 Accessed September 21, 2021; Laércio Santos, Jaime Joaquim da Silva Pereira Cabral, José Almir Cirilo, Dayana Freitas, Maurício Sens, Ricardo de Aragão, Timóteo HS Barros, “Aplicação da tecnologia de filtração em margem para população difusa no Semiárido Pernambucano” [2014] Revista Brasileira de Recursos Hídricos (19)(4) Out/Dez 49, 58 www​ .researchgate​ .net/​ publication/​ 305306748​_Aplicacao​_da​_tecnologia​_de​_filtracao​_em​_margem​_para​_populacao​ _difusa​_no​_Semiarido​_Pernambucano Accessed September 9, 2021.

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281

However, what still predominates in the groundwater extraction sector is empiricism and amateurism, as well as illegality, a fact that can cause serious damage to existing aquifers. There is depletion and contamination of the water source, as well as harm to the health of the community and agricultural production through direct consumption of water that has not been efficiently treated.25 It is important to highlight that only 47 percent of rural households have some type of water supply from mains, wells, or springs.26

Note: GENERAL NETWORK 1: well or spring with internal channeling and rainwater stored in cisterna; GENERAL NETWORK 2: general well or rising network without channel and water car; GENERAL NETWORK 3: other forms. Source: Fundação Nacional de Saúde—FUNASA, “Panorama do Saneamento Rural no Brasil” [2017] www.funasa.gov.br/panorama-do-saneamento-rural-no-brasil accessed August 10, 2021.

Figure 16.2

Rural sanitation situation by region in Brazil

25 Aldo da C. Rebouças, “Água na região Nordeste: desperdício e escassez” [1997] Estudos avançados, 11(29) www​.scielo​.br/​scielo​.php​?script​=​sci​_arttext​&​pid​=​S0103​ -40141997000100007 Accessed September 21, 2021; Pedro Carlos Gama da Silva, Magna Soelma B. de Moura, Lúcia Helena Piedade Kiill, Luiza Teixeira de Lima Brito, Lúcio Alberto Pereira, Iêdo Bezerra Sa, Rebert Coelho Correia, Antônio Heriberto de C. Teixeira, Tony Jarbas Ferreira Cunha, Clóvis Guimarães Filho, “Caracterização do Semiárido brasileiro: fatores naturais e humanos” (first published 2010, Embrapa), “Semiárido brasileiro: pesquisa, desenvolvimento e inovação” Petrolina. 26 Trata Brasil Institute, “A revolução silenciosa das águas subterrâneas no Brasil: uma análise da importância do recurso e os riscos pela falta de saneamento” (first published 2019) www​.tratabrasil​.org​.br/​images/​estudos/​itb/​aguas​-subterraneas​-e​ -saneamento​-basico/​Estudo​_aguas​_subterraneas​_FINAL​.pdf Accessed November 15, 2020.

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Therefore, there are two serious problems regarding the quality of these waters in the medium and long term. One is the lack of effective regulation, effective management, and governance. The second is the lack of sanitation systems that can avoid diffuse contamination, including animal husbandry management techniques and use of individual systems in rural homes.27 The quality of the water in built reservoirs (which are called “açudes”), of the rainwater accumulated in cisterns, of the water provided by water trucks (the “carros pipas”), and of underground water is worrying. The irregularity of rainfall, which allows the natural recharging of underground stocks, is also concerning. More complex technology which extracts groundwater intensively and promotes aquifer recharge, such as that found in Israel, is not yet used in Brazil. However, we highlight that Israel already faces problems of well stagnation and nitrate contamination because of overexploitation.28 In the Brazilian semiarid region, due to its hydrogeological characteristics there are four similar significant hydrogeological provinces with a predominance of water extraction in the crystalline: Northeast Eastern Shield, São Francisco, Parnaíba, and Costeira.29 The first of these is the largest—occupying the central region of the semiarid—and the one which needs greater investment in research and accurate technique to locate the groundwater accumulation sites. It is the largest region in territorial extension and the one that suffers the most from water scarcity. Any water source found has unmatched importance for that area. However, the regions of São Francisco, Parnaíba, and Costeira have a higher incidence of groundwater, and also include part of the semiarid region. The water is present in about 50 percent of the northeastern territory, notably in the semiarid.30

27 Leo Heller, Priscila Neves-Silva, “O direito humano à água e ao esgotamento sanitário como instrumento para promoção da saúde de populações vulneráveis” [2016] Ciência & Saúde Coletiva, 21(6) 1861,1870 https://​dx​.doi​.org/​10​.1590/​1413​ -81232015216​.03422016 Accessed August 10, 2021. 28 Aldo da C. Rebouças, “Água e desenvolvimento rural” [2001] Estudos Avançados (15)(43), www​.scielo​.br/​pdf/​ea/​v15n43/​v15n43a24​.pdf Accessed September 21, 2021; Nir Becker, Water Policy in Israel, Context, Issues and Options (first published in 2013, Springer 2013). 29 CPRM—Serviço Geológico de Brasil Programa de água subterrânea para a região nordeste, programa anual de trabalho Geologic Brazilian Service (2001) www​.leb​.esalq​.usp​.br/​leb/​disciplinas/​Fernando/​leb1440/​Aula​%208/​Transparencias/​ agua​%20subterranea​%20zona​%20arida​.pdf Accessed December 5, 2020. 30 Aldo da C. Rebouças, “Água na região Nordeste: desperdício e escassez” [1997] Estudos avançados,11(29) www​.scielo​.br/​scielo​.php​?script​=​sci​_arttext​&​pid​=​ S0103​-40141997000100007 Accessed September 21, 2021; João Suassuna, “Água: um fator limitante para o desenvolvimento do Nordeste?” [2002] Estudos Avançados

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283

Moreover, there is a strong and fundamental link between water and rural development,31 because there is neither food production nor work for the rural man without rational use of water, especially in the northeastern semiarid. Cities were created from rural development and maintain a high dependence on rural areas, with about 44 percent of workers living in the countryside.32 Castro33 highlights the possibility of developing irrigation projects in the northeastern semiarid region but indicates that the medium and the large projects carried out so far have been unsuccessful, mainly because of the model adopted—for example, strong and extensive agriculture. It is necessary to rethink the focus of a rural development public policy aimed at smaller yields for more rational uses of water, resulting in crops that would encourage local and regional production by more farmers. In addition to this, there is technical support for the use of groundwater for small and medium-sized crops. In the case of the semiarid, desalination plants are needed to provide water for human supply and small agricultural production. This is being developed in the Águas Doce Program, linked to the Federal Government Ministry of the Environment, which has already installed around 1,300 community-managed desalination systems for various uses, including agricultural activity.34 Therefore, it is possible to assess the relevance that this groundwater extraction and desalination system has for the semiarid region involving essentially rural communities that would have no other access to water, since they are on the fringe of the city’s water infrastructure circuit. In addition, each well combines a family farming system that assists in the feeding of each family group, as well as the surplus that is sold in the cities. Hence it is possible to have reasonable initial conditions for agricultural production, which still require other items such as technical assistance and vegetation conservation for greater water retention and to recharge the underground system. But it should be noted that most farmers still depend on other income outside their rural area.35

(11)(29) www​.kas​.de/​c/​document​_library/​get​_file​?uuid​=​6868dcf0​-2010​-3626​-b134​ -81fb8d09fbec​&​groupId​=​252038 Accessed September 21, 2021. 31 Aldo da C. Rebouças, “Água na região Nordeste: desperdício e escassez” [1997] Estudos avançados,11(29) www​.scielo​.br/​scielo​.php​?script​=​sci​_arttext​&​pid​=​S0103​ -40141997000100007 Accessed September 21, 2021. 32 National Water and Sanitation Agency, ANA, Atlas nordeste: abastecimento urbano de água (first published 2005, ANA, Brasília). 33 César Nunes de Castro, Sobre a agricultura irrigada no semiárido: uma análise histórica e atual de diferentes opções de política (first published 2018), Institute of Applied Economics Politics. 34 www​.mma​.gov​.br/​mma​-em​-numeros/​programa​-agua​-doce 35 Vládia Pinto Vidal de Oliveira, Jefferson Roberto de Oliveira Marinho, “Os paradigmas orientadores do desenvolvimento do Semiárido Brasileiro e suas implicações para o manejo dos recursos naturais” [2013] Rev. Econ. NE Fortaleza 44 n. espe-

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As of 2010, about 39.5 percent of income comes from rearing animals and other purposes, about 11.5 percent from agriculture, 29 percent from forests, 14.5 percent from agroforestry, and 5.5 percent from other purposes.36 These activities depend essentially on water available for production. It should be considered that of Brazil’s total of 5,073,324 agricultural establishments, 34 percent are found in the semiarid—a quite significant number in the national context.37 Large water infrastructure projects such as the São Francisco river transposition are mainly focused on urban populations, leaving aside those activities developed by the rural population which are fundamental for the urban population.38

4.

SOME QUESTIONS ABOUT THE ENVIRONMENTAL LEGISLATION IN BRAZIL

The Brazilian Constitution establishes common legislative competence between the administrative levels; that is, both the central government, states, municipalities, and the Federal District can establish environmental rules. These administrative entities have different strengths and performances as well. It would be possible to say that the central government has a stronger structure through which to implement an environmental public policy, while the states have a more intermediate structure and the municipalities remain highly deficient in the regulation of the environment.

cial 239–50 https://​bnb​.gov​.br/​documents/​80223/​205365/​ren​_2013​_3​_os​_paradigmas​ .pdf/​b7508ca8​-ccf4​-4412​-bc2e​-f620c2b4ae7c Accessed November 21, 2020; Junior Ruiz Garcia, Antonio Marcio Buainain, “Desenvolvimento rural do semiárido brasileiro: transformações recentes, desafios e perspectivas” [2013] Revue franco-brésilienne de géographie, http://​confins​.revues​.org/​8633 Accessed December 10, 2020; Marta Aurélia Dantas de Lacerda, Joacir Rufino de Aquino, “Magnitude e condições de reprodução econômica dos agricultores familiares pobres no semiárido Brasileiro: evidências a partir do Rio Grande do Norte” [2014] RESR Piracicaba-SP 52 Supl. 1 167, 188 www​.scielo​.br/​scielo​.php​?script​=​sci​_arttext​&​pid​=​S0103​-20032014000600009 Accessed November 21, 2020. 36 INSA—Instituto Nacional do Semiárido, “Estabelecimento agropecuários do semiárido brasileiro” (first published 2018, National Semiarid Institute Report) https://​ portal​.insa​.gov​.br/​acervo​-livros/​1202​-estabelecimentos​-agropecuarios​-do​-semiarido​ -brasileiro Accessed November 21, 2020. 37 Brazilian Institute of Geography and Statistics—IBGE, Brazilian semiarid region. 1:12 000 000 (Map 2017), Brazil, ftp://​geoftp​.ibge​.gov​.br/​organizacao​ _do​_territorio/​estrutura​_territorial/​semiarido​_brasileiro/​Situacao​_23nov2017/​mapa​ _Semiarido​_2017​_11​_23​.pdf> Accessed 1 october 2021. 38 Jose Irivaldo Alves Oliveira Silva, “Ressignificação Ambiental e modernização ecológica no Semiárido: o projeto de integração e revitalização do São Francisco” (first published 2016, Hucitec), São Paulo.

Groundwater relevance for Brazilian semiarid development in the northeast

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However, despite national and subnational problems, the Brazilian judiciary has played a fundamental role in protecting environmental principles in general, including in relation to water, considering water bodies as entities with legal personality—symbolizing the importance of water for ecological balance. Cases from the United States and Brazil provide examples of local achievements of the rights of nature and other actions by municipal authorities, as well as tribal and indigenous jurisdictions and councils, in response to inaction or violations at the state or federal level. A cases of recognition of the rights of nature in the US, in Southern Ohio, allowed a group of hippos to be interested parties in a process. In Brazil, bill n. 145/21 is being processed in the Federal Chamber allowing non-human animals to be individually party to lawsuits. While such measures often lack force, making them vulnerable to legal challenge or federal overturn, they can have moral and political force as part of a broader campaign. The simple fact of recognizing and proclaiming rights can help transform social and cultural values and increase the visibility of the rights of nature.39 In the case of semiarid regions such as the Brazilian northeast, the need for more protective legislation for water courses and hydrographic basins becomes more urgent. Câmara and Fernandes40 point out that it is a legal advance to transpose water as heritage, as a thing, into water as a living being. It is important to say that Brazilian legislation has not yet made progress in this regard, that some initiatives have been in a sense isolated, and that there is still no more general understanding emanating from the Supreme Court or another court of justice, such as the case of Rio Doce, which filed a lawsuit requesting the defense of environmental interests and the legal personality of a river that was the victim of a major disaster in Brazil. But given the importance that the Brazilian Federal Supreme Court has given to environmental protection, such an advance could occur.

39 https://​ static1​. squarespace​. com/​ static/​ 5 f3c1​ 7 d9c3c4d05 ​ be063a9c5/​t/​5f935​ 2e8aba78b2​ad602d3a0/​1603490572225/​DIGITAL+​Right+​of+​Rivers+​Report+​Exec+​ Summary+​Portuguese​.pdf 40 Ana Stela Vieira Mendes Câmara, Márcia Maria dos Santos Souza Fernandes, “O Reconhecimento Jurídico do Rio Atrato como Sujeito de Direitos: reflexões sobre a mudança de paradigma nas relações entre o ser humano e a natureza’ [2018] Revista De Estudos E Pesquisas Sobre As Américas, 12(1) https://​periodicos​.unb​.br/​index​.php/​ repam/​article/​view/​15987

286

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The future of environmental law

CONCLUSIONS

Based on the literature and the collected data, the following conclusions may be advanced: • Water is a scarce element in the Brazilian semiarid that has very advanced aridity characteristics and cyclical periods of great water shortage. • Social, economic and environmental conditions form a context of extreme vulnerability for the population and the development of economic activities. • Groundwater becomes a solution for maintaining life in the northeastern semiarid, notably in rural areas that do not have regular water supplies. • Most of the rural populations in the semiarid region are not considered in large urban water infrastructure projects, such as the São Francisco river transposition, which increases their dependence on groundwater and other individualized systems that end up as the only available solution, such as cisterns and water trucks. • Diffuse populations in rural areas, far from urban centers, have great difficulty in accessing public sanitation and accessing water policies, which increases the possibility of groundwater contamination as there is virtually no collective sanitation solution for these populations, requiring a systemic solution that considers sanitation and access to quality water as a priority. • Productive spaces are fundamental for the economic maintenance of the semiarid, whose main activity is agriculture, with groundwater and desalination projects being of great relevance. • The level of groundwater institutionalization in Brazil is low except in the case of waters with hydromineral characteristics, which allows the growth of legally permissible extraction to the detriment of regulated wells. It is important to say that advances have been seen, especially in the work of the judiciary, which has protected Brazilian environmental legislation from setbacks. However, it is important to recognize that the regulation of activities harmful to the environment has lost strength in Brazil, and it is easy to verify a failure to comply with legal norms that results in river pollution, deforestation, fires, and hunting, among other behaviors that degrade the environment.

Index Aarhus Convention (1998) 6, 42–3 Aarts, M N C 259 Achmea Decision 39, 47, 148 Adelman, Sam 71, 72 adjudication 9–10 African Charter on Human and People’s Rights 135 Agenda 21 4, 17 agri-environmental governance 10–11, 252–5 Netherlands altruism-based participation 262–3, 266 collectivist considerations 263–4, 266 egoism-orientated participation 261–2, 266 motivation 258–67 new governance model 255–7 policy recommendations 267–8 principle-based motivations 264–5, 266 regulatory design 258–9 research findings 260–7 research methodology and case studies 259–60 voluntary participation 257–8 agriculture 10–11 reuse of waste water 247–9 Aguilar, Adriana F 56 Ahmad, N 258 Alternative Dispute Resolution (ADR) 214 altruism 262–3, 266 Amazon biome 108 American Convention on Human Rights 135 American Court of Human Rights 136–7 ANAW v Tanzania 179, 186–8, 194 Andean Tribunal 195 Ansell, Christopher 200

Antaris case 151–2 Anthropocene 7, 8, 14, 16, 72, 104, 106 Earth System Science and 110, 111, 112 ecological justice 117 sustainability and 113 arbitrary and unreasonable behaviour 154 area-based management tools (ABMTs) 15–24, 27–9 areas of outstanding natural character 88–90 Argentina 70, 77 Barati, Ali Akbar 271 Barents Sea 221, 224, 228, 229 Batson, C D 258 behavioural science 258 Beyerlin, Ulrich 56 biodiversity EU Biodiversity Strategy 169, 172, 253 marine environment 23, 24, 168–70, 172 unique biodiversity values 90–1 Brazil Amazon biome 108 Constitution 70, 77 environmental legislation 284–5 in dubio pro natura principle 119 Municipal Human Development Index 276, 277 precautionary principle 105 São Francisco River 271, 272, 273 semiarid development 11, 270–2 importance of groundwater 11, 270–2, 273, 278–84, 286 regional characterization 272–4 social, economic and environmental data 274–8 Brophy, J E 258 287

288

The future of environmental law

Brundtland Commission 3–4, 66, 67, 70, 84 Çalı, Baṣak 51–2 Câmara, Ana Stela Vieira Mendes 285 Capra, Fritjof 110 case studies 10–11 Central American Court of Justice (CACJ) 189–94, 195 Chile 74 Chuffart, Stéphanie 51 clean energy 142 climate mitigation measures 159, 162, 218 climate science 109 co-regulation 175–7 collaboration 263–4, 266 agri-environmental governance 254–5, 257, 267, 268–9 National Green Tribunal (India) 198–213 collective goals 258 collectivism 263–4, 266 see also agri-environmental governance Colombia 77 Common Agricultural Policy (CAP) 255, 267 comparative law 69–70 compensation 128–9 Comprehensive Environmental Response, Cleanup and Liability Act (CERCLA) (US) 130–1 Convention on Biological Diversity (CBD) 4, 40 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 41 Costa Rica 192–3 Council of Europe 136 courts 9–10 activism 202 Andean Tribunal 195 Central American Court of Justice (CACJ) 189–94, 195 Court of Justice of the European Union (CJEU) 123, 178, 180–4 non-regression principle 231

East African Court of Justice (EACJ) 184–9 environmental courts and tribunals (ECTs) 196–8 India see National Green Tribunal (India) Mexico 80, 83, 105, 118 New Zealand 87–9, 91, 92, 95–6, 97, 100 proliferation 178 regional integration 178–9, 194–5 see also environmental litigation COVID 19 pandemic 106–8 Crutzen, Paul 106 customary international law 61 Czech Republic 141–2 solar energy support 143–4, 156–7 avoidance of arbitrary and unreasonable behaviour 154 fair and equitable treatment (FET) 151–4 intersection with international investment law 146–54 legitimate expectations of investors 151–4 modification by imposition of a solar levy 145–6 solar levy as disguised taxation measure 150–1 decarbonization 162 deforestation 107 desalination plants 272 desertification 272 dispute resolution 214 duty of care 227–30 duty to repair 121–3, 138–9 compensatory environmental damage 128–9 environmental duties of the operator 127–9 environmental duties of the owner 130–2 environmental duties of the State 129–30 Environmental Impact Assesment Directive 128

Index

Environmental Liability Directive (ELD) 122, 123–6, 127, 128, 129, 131 Habitats Directive 129 Industrial Emissions Directive 127–8, 129 insufficiency of the polluter-pays principle 132–3 principle of reparation 133 EU law 134–5 human rights law 135–8 theoretical basis 134–5 remedying environmental damage 127–8 Water Framework Directive 129 see also polluter-pays principle Earth Charter 113, 114 Earth System Science 108–12, 115, 119, 120 East African Court of Justice (EACJ) 184–9 ecological integrity 113–15 ecological justice 117 ecological turn 113–15, 118 ecologically dangerous activities 127 ecologically sensitive law 109, 111, 112, 120 Economic, Social and Cultural Rights Committee 137 Ecuadorian Constitution 8, 104–5, 114, 116 egoism 261–2, 266 Energy Charter Treaty (ECT) 39, 148, 150–1, 153, 155 energy security 158 energy transitions 9 Environment Court of New Zealand 87–8, 95, 96, 198 Environmental Action Programmes (EAPs) 3 environmental bottom lines 95–7 environmental courts and tribunals 196–8 environmental democracy principle 5–6 Environmental Impact Assessment Directive 128 Environmental Impact Assessments (EIAs) 162, 165 environmental law adjudication 9–10

289

case studies 10–11 energy transitions 9 future 11–12 integration of science and legal norms 109–10 interpretation see Vienna Convention on the Law of Treaties (VCLT) legal perspectives on sustainability 7–9 normative integration 31–3 role of international law 7 substantive principles 5 see also international environmental law (IEL) environmental liability see duty to repair; polluter-pays principle Environmental Liability Directive (ELD) 122, 123–6, 127, 128, 129 environmental litigation 9–10, 178–80 Central American Court of Justice (CACJ) 189–94, 195 Court of Justice of the European Union (CJEU) 180–4 East African Court of Justice (EACJ) 184–9 Norway see People v Arctic Oil environmental principles 5, 121 see also environmental democracy principle; polluter-pays principle; precautionary principle; prevention principle Escazú Agreement (2018) 6 European Convention on Human Rights (ECHR) 54, 216 European Court of Human Rights (ECtHR) 54, 136, 216 European Green Deal 9, 10, 158, 160–2, 168, 172, 224, 252 European Union (EU) 79, 106 Biodiversity Strategy 169, 172, 253 Common Agricultural Policy (CAP) 255, 267 Court of Justice of the European Union (CJEU) 123, 178, 180–4 non-regression principle 231 Emissions Trading Scheme (ETS) 218

290

The future of environmental law

Environmental Impact Assessment Directive 128 Environmental Impact Assessments (EIAs) 162, 165 Environmental Liability Directive (ELD) 122, 123–6, 127, 128, 129, 131 ‘Farm to Fork’ strategy 252 Habitats Directive 129, 165, 256 Industrial Emissions Directive 127–8, 129 Marine Strategy Framework Directive (MSFD) 163–4, 167, 171, 172 Maritime Spatial Planning Directive (MSP) 164, 166–7 Offshore Safety Directive 164, 175–6 regulation of marine renewables 162–3 co-regulatory approach 175–7 constitutional framework 163–4 lack of specific rules on marine renewables 168–70 proposed supplementation with private regulation 171–4 secondary law 164–8 Strategic Environmental Impact Assessment Directive (SEA Directive) 228, 229, 234 Strategic Impact Assessment (SEA) 162 Treaty on the Functioning of the European Union (TFEU) 131, 134, 163, 164 Waste Framework Directive 247 Water Framework Directive 129 extraterritorial emissions 227–30, 232–3 fair and equitable treatment (FET) 151–4, 155, 156 farming see agri-environmental governance; agriculture feed-in tariff 142–3 Czech solar energy support 143–4, 156–7 avoidance of arbitrary and unreasonable behavior 154

fair and equitable treatment (FET) 151–4 intersection with international investment law 146–54 legitimate expectations of investors 151–4 modification by imposition of a solar levy 145–6 solar levy as disguised taxation measure 150–1 international investment law and 146–57 Fensterseifer, Tiago 111 Fernandes, Márcia Maria dos Santos Souza 285 fisheries management 19–20, 25–6 Fitzmaurice, Malgosia 54 FONARE v Costa Rica 180, 192–4 foreign investments 146–56 Gentini case 56 geological transformations 110 Germany 79, 132, 135 Global Environmental Assessment Programme 2 Grinlinton, David 103 groundwater 11, 270–2, 273, 278–84, 286 Habitats Directive (EU) 129, 165, 256 Hague Peace Conference on Nature Conservation (1909) 1 Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea 24 Hediger, Werner 69 herbicides 58–9 Herman Benjamin, Antonio 76 Howarth, David 86 Human Development Index 276 human rights greening human rights through interpretation 7, 49–55 advantages and limitations of using IEL principles application of international environmental law (IEL) principles 57–62, 64 reparation 135–8

Index

sustainable development goals and 74 Human Rights Committee 137 Human Rights Council 136 Huxley, Julian 1 impact assessments 162, 165, 227–30 in dubio pro natura principle 8, 81, 109, 120 ecological integrity and 113–15 ecological justice 117, 118 Ecuadorian Constitution 114, 116 Latin American constitutionalism 116–18 precautionary principle and 104–5, 117 restrictive application 104–5, 112, 115 India Delhi Vehicular Pollution Case 202, 203 National Green Tribunal (NGT) see National Green Tribunal (India) public interest litigation (PIL) 202–3 indigenous values 92–5 Industrial Emissions Directive 127–8, 129 infectious diseases 107 Inter-American Court of Human Rights (IACtHR) 53 intergenerational responsibility 80–1, 84 Intergovernmental Panel on Climate Change (IPCC) 218 international agreements 1–4 International Convention on the Elimination of All Forms of Racial Discrimination 54 International Court of Justice (ICJ) 33 International Covenant on Civil and Political Rights (ICCPR) 54, 137 International Covenant on Economic, Social and Cultural Rights 137 international environmental law (IEL) principles 55–7 advantages and limitations in interpretation of human rights law 62–4

291

application to interpretation of human rights law 57–62, 64 no-harm principle 58, 61 precautionary principle 58–60 international investment law 146–56 International Law Commission (ILC) Study Group on the Fragmentation of International Law 32, 38 International Union for Conservation of Nature and Natural Resources (IUCN) 2 International Union for the Protection of Nature (IUPN) 1–2 interpretation see Vienna Convention on the Law of Treaties (VCLT) investment disputes 146–56 Iron Rhine Arbitration 36–7, 43, 48 irrigation 247–8 Kenya 186, 187 Kingston, S 259 Klein, Naomi 106 Knierim, A 266–7 Koskenniemi, Martti 37 Kotzé, Louis 68, 116 Kozien, Adam 73 Kyoto Protocol 4, 143 Laitos, Jan 110 Latin American constitutionalism 116–18 litigation see environmental litigation Lovejoy, Thomas 108 Lowe, Vaughan 85 Mackenzie, Ruth 56 Mapiripán Massacre v Colombia 53 Marauhn, Thilo 56 marine biodiversity 23, 24, 168–70, 172 marine environment 14–15 area-based management tools (ABMTs) 15–24, 27–9 areas beyond national jurisdiction 19–20, 21 biodiversity 23, 24 connectivity vs zonal approach 15 balancing interests 19–21

292

The future of environmental law

new international legally binding instrument: Draft BBNJ 23, 27–8, 29 North-East Atlantic Fisheries Governance 25–6 promotion of multi-sectoral approach 22–8 Sargasso Sea 24–5 fish stocks 19–20 involvement of stakeholders 21–2 renewables 9 socialisation of the law of the sea 15, 17-18 marine farms 88 marine-protected areas (MPAs) 18 marine renewables see offshore renewable energy Marine Strategy Framework Directive (MSFD) 163–4, 167, 171, 172 Maritime Spatial Planning Directive (MSP) 164, 166–7 Marques Osorio, Leticia 77 Martin, Gilles 56 Mattei, Ugo 110 mediation 214 Merkouris, Panos 45 Mexico 77, 79, 80 in dubio pro natura principle 105, 118 sustainable development 70, 78, 82–3 Millennium Development Goals (MDGs) 67, 275 Moller, Rolf 71 motivation 258–67 Municipal Human Development Index 276, 277 National Green Tribunal (NGT) (India) 10, 197–8 collaboration 198–200 application of constitutional contestation 201–2 approach adopted 204–13 challenges 212–13 collegiality in decision-making 205, 209–10 definition 200–4 embracing institutional diversity 201, 202

establishing Monitoring Committee and implementation of decisions 210–11 investigative procedure 205, 208–9 rationale behind adopting a collaborative approach 202–4 separation of powers and 212 stakeholder consultative adjudicatory process 205–8 credibility 214 Yamuna River Case 207, 208 national sovereignty 78–80 net-zero greenhouse gas emissions 141 Netherlands agri-environmental governance altruism-based participation 262–3, 266 collectivist considerations 263–4, 266 egoism-orientated participation 261–2, 266 motivation 258–67 new governance model 255–7 policy recommendations 267–8 principle-based motivations264–5, 266 regulatory design 258–9 research findings 260–7 research methodology 259–60 voluntary participation 257–8 salinization 238 causes and consequences 239–41 Delta Programme 241 insufficient recognition 250–1 possible measures and role of environmental law 242–50 reuse of waste water in the agricultural sector 247–9 salt-tolerant vegetation 249–50 storage of rainwater by individual companies 243–6 New Zealand

Index

areas of outstanding natural character 88–90 environmental bottom lines 95–7 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZCSA) 97–101 higher court decisions 88–9, 91, 92, 95–6, 97, 100 indigenous values 92–5 Natural and Built Environments Bill (NBA) 101–3 New Zealand Environment Court (NZEnvC) 87–8, 95, 96, 198 Regional Coastal and Environment Plan (RCEP) 96 Resource Management Act 1991 (RMA) 85, 86–7, 89, 92, 95, 96, 100, 101, 102 unique biodiversity values 90–1 Nicaragua 192–3 no-harm principle 58, 61 Nobre, Carlos 108 non-human life 107, 109, 112, 113, 118 non-legally binding materials 42–4 non-regression principle 231, 234 normative integration 31–3 science and 109 North American Conservation Conference 1 North-East Atlantic Fisheries Governance (NEAFC) 25–6 Norway border dispute with Russia 221 oil policy 10, 215–21 see also People v Arctic Oil political actors and coalitions 219–20 Nusdeo, Ana María 70 oceans 160–1 see also offshore renewable energy offshore renewable energy 9, 158–60 environmental benefits and adverse effects 159 EU regulation 162–3 co-regulatory approach 175–7 constitutional framework 162–3 lack of specific rules on marine renewable 168–70

293

proposed supplementation with private regulation 171–4 secondary law 164–8 European Green Deal 158, 160–2, 168, 172 Offshore Safety Directive 164, 175–6 oil exploration 10, 215–21 see also People v Arctic Oil Oil Platforms Case 46 Orakhelashvili, Alexander 38 OSPAR Arbitration 42–3, 46 OSPAR Commission 26, 174 Ott, Konrad 68 outstanding natural character 88–90 Pakistan 197 Paris Agreement 4, 158, 217, 219 People v Arctic Oil 223, 224 Peel, Jacqueline 56 Pelluchon, Corine 107, 109, 119 People v Arctic Oil 10, 215–16, 233–4 District and Appeals Court decisions 221–3 responsibility for extraterritorial emissions 227–30, 232–3 right to a healthy environment 230–1, 234 Supreme Court decision 223 duty of care for extraterritorial emissions and impact assessments 227–30 right to a healthy environment and separation of powers 225–7 statutory response and compliance with Paris Agreement 223–5 Permanent Court of International Justice (PCIJ) 33 petroleum resource management 10, 215–21 see also People v Arctic Oil planetary boundaries 111, 113, 115, 120 polluter-pays principle 5, 122, 125, 127, 129, 130, 131, 132 insufficiency 132–3 Environmental Liability Directive (ELD) 122, 123–6, 131 insufficiency 132–3 see also duty to repair

294

The future of environmental law

precautionary principle 5, 8, 17, 18, 58–60, 63, 100, 114, 163, 170, 176 in dubio pro natura 104–5, 117 prevention principle 5, 8, 96, 114, 121, 163 principlism 264–5, 266 Pring, George and Catherine 196 private property 75–8 private regulation 171–4 pro natura see in dubio pro natura public interest litigation (PIL) 202–3 Real Ferrer, Gabriel 72, 79 regional fisheries bodies (RFBs) 20 regional fisheries management organisations (RFMOs) 20 regional integration 178–9, 194–5 regulatory competition 173 regulatory design 258–9 regulatory stability 153 renewable energy 9, 141–2 see also feed-in tariff; offshore renewable energy; solar levy reparation see duty to repair right to a healthy environment 230–1, 234 rights of nature 285 Rio Declaration (1992) 4, 5, 6, 61, 63, 67, 69, 79 risk-balancing 261 risk-shifting 159 Rockstrom, Johan 111 rule of law 231 Runhaar, H A C 257 Russia 221 salinization 10, 236–9 adaptation and mitigation strategies 242–3 reuse of waste water in the agricultural sector 247–9 salt-tolerant vegetation 249–50 storage of rain water by individual companies 243–6 Netherlands 238 Delta Programme 241 insufficient recognition 250–1

possible measures and role of environmental law 242–50 salt-tolerant vegetation 249–50 Sands, Philippe 56 Santos, Boaventura de Sousa 106 Sargasso Sea 24–5 Sarlet, Ingo 111 scientific processes 58, 59–60, 106–7 Earth System Science 108–12 normativity of law and 109 scientific uncertainty 5, 18, 117, 118, 120 Self-Determination Theory 258 separation of powers National Green Tribunal (India) 212 People v Arctic Oil 225–7 Serengeti National Park 186–7 sewage treatment 275, 276 Siebert, R 266–7 soft law 43 solar energy support 143–4 solar levy 142, 143–50, 153, 156 South Africa 70 Spain 78 Steffen, Will 111 Stockholm Declaration (1972) 2, 60, 66, 79 Strategic Environmental Impact Assessment Directive (SEA Directive) 228, 229, 234 subsidy schemes 10–11, 155, 249, 255–6, 260, 261, 264, 265 sustainability Anthropocene context 113 implications 73 ecological function of private property 75–8 liability without proof of damage 80–1 limits to individual freedom 74–5 national sovereignty 78–80 legal dimension 7–9, 83–4 history of the concept of sustainability 66–9 implications of sustainability 73–81 nature of sustainability 71–2 reception in comparative law 69–70

Index

Mexican law 77, 78, 79, 80, 82–3 relationship with other principles of environmental law 81–8 weak and strong sustainability 68 sustainable blue economy 161 see also offshore renewable energy sustainable development 4, 30 normative integration 31–3, 47 treaty interpretation see Vienna Convention on the Law of Treaties (VCLT) Sustainable Development Goals (SDGs) 67–8, 72, 76, 103, 113 human rights and 74 sustainable management 8, 85–6 New Zealand areas of outstanding natural character 88–90 environmental bottom lines 95–7 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZCSA) 97–101 indigenous values 92–5 Natural and Built Environments Bill (NBA) 101–3 New Zealand Coastal Policy Statement 2010 (NZCPS) 88, 89, 90 higher court decisions 88–9, 91, 92, 95–6, 97, 100 New Zealand Environment Court (NZEnvC) 87–8, 95, 96 Resource Management Act 1991 (RMA) 85, 86–7, 89, 92, 96, 100, 101, 102 unique biodiversity values 90–1 systemic integration 31–2 limited scope of VCLT provision ambiguity in relation to extraneous legal rules and applicable law 45–7 different evaluations of Art 31(3)(c) 37–8 extent of ‘parties’ and treaty interpretation as a daily activity 39–42

295

hardness of ‘any relevant rules of international law’ 42–4 relevance of ‘any relevant rules of international law’ 44–5 Tanzania 186, 189 Toogood, M 266–7 treaty interpretation dynamic interpretation 54 effectiveness 52–3, 55 evolutive approach 34–7, 52, 53–5 greening human rights through interpretation 7, 49–55 living instruments 53–4 principles of international environmental law (IEL) 55–7 teleological interpretation 51, 53, 55 see also Vienna Convention on the Law of Treaties (VCLT) Treaty on the Functioning of the European Union (TFEU) 131, 134, 163, 164 Tsang, J-A 258 Tyrer v United Kingdom 54 Uganda 189 uncertainty 5, 18 unique biodiversity values 90–1 United Nations (UN) Biodiversity Convention 168 Charter 78 Committee on Economic, Social and Cultural Rights (CESCR) 50, 57–62, 64 Conference on Environment and Development (1992) (Rio Conference) 4 Conference on the Human Environment (1972) 2 Convention on the Law of the Sea (UNCLOS) 17, 19, 20, 23 Environment Programme (UNEP) 2 Framework Convention on Climate Change (UNFCCC) 4 human rights bodies 54, 136, 137

296

The future of environmental law

Millennium Development Goals (MDGs) 67, 275 Special Rapporteur on Human Rights and the Environment 137 United States: rights of nature 285 Upton, Simon 87 Urgenda litigation 230–1 Van Damme, Isabelle 38 Van Woerkum, C M J 259 Venezuela 70, 75 Vienna Convention on the Law of Treaties (VCLT) 51 Art 3(3)(c) 7, 32–4, 47–8, 61 ambiguity in relation to extraneous legal rules and applicable law 45-7 different evaluations of usefulness 37–9 evolutive elements 34–7 extent of ‘parties’ and treaty interpretation as a daily activity 39–42 hardness of ‘any relevant rules of international law’ 42–4

Iron Rhine Arbitration 36–7, 48 relevance of ‘any relevant rules of international law’ 44–5 voluntarism-based policy instruments 253, 257–8, 260, 268 Viñuales, Jorge E 51 Waldron, Jeremy 213 Waste Framework Directive 247 Water Framework Directive 129 water scarcity 11, 273, 274–6 desalination plants 272 see also groundwater; salinization windfall profits 154 World Commission on Environment and Development see Brundtland Commission World Health Organization (WHO) 107 World Trade Organization (WTO) 38 dispute settlement 178 national sovereignty and 80 treaty interpretation 40–1 zero pollution 158, 162 zoonotic diseases 107