The Recent Italian Reform on ‘Eco-crimes’

Ogni lavoro scientifico rappresenta il frammento di un cammino. I percorsi forniscono prospettiva e danno profondità a quelle realtà su cui indugiano e di cui sono parte e vanno definiti in ragione del loro obiettivo. La collana “Percorsi di diritto amministrativo”, con i suoi volumi monografici o collettanei, intende illustrare la direzione di una traiettoria, attraversando un territorio, il diritto amministrativo, sempre più complesso. La sua multiforme articolazione è una sfida per il giurista, tanto più grande quanto più aiuta a comprendere alcuni punti fermi, provando ad affrontare il senso di disorientamento con gli strumenti propri dei libri, ossia le idee. In questo contesto, la collana è pensata per accogliere lavori la cui analisi si sottragga così alla fascinazione del futuro come allo sterile indugio sul passato, per costituire, invece, un apporto attuale, certamente circoscritto, ma ben radicato nei problemi del presente e nel dibattito della scienza pubblicistica. Una collana che si mette al servizio di questo libero, schietto e franco confronto, soprattutto se alimentato dai giovani, ma che farà ricorso a un referaggio autorevole, quale contributo di serietà e di scientificità dell’analisi. L’auspicio è che dallo sguardo verso nuovi approdi possano anche scaturire studi differenti da quelli della nostra tradizione culturale, per argomenti trattati e strumenti linguistici impiegati. Isbn 979-12-5976-105-7 Nicola Gullo è professore associato di diritto amministrativo dell’Università degli Studi di Palermo, componente del collegio di dottorato in Diritti umani dell’Università degli Studi di Palermo e del consiglio direttivo dell’Associazione italo-brasiliana dei professori di diritto amministrativo e costituzionale. È autore delle monografie Emergenza criminale e diritto amministrativo. L’amministrazione pubblica dei beni confiscati (Napoli, Editoriale Scientifica, 2017) e Autorizzazioni amministrative e liberalizzazione dei mercati tra diritto europeo e diritto interno (Napoli, Editoriale Scientifica, II ed., 2018), del Manuale di diritto urbanistico (con Filippo Salvia e Cristiano Bevilacqua, Assago, Wolters Kluwer, 2021) e di numerosi scritti in materia di attività delle pubbliche amministrazioni, dirigenza amministrativa, autonomie territoriali, prevenzione della corruzione, tutela dell’ambiente, governo del territorio. euro 45,00 65 percorsi di diritto amministrativo collana diretta da G. F. Cartei F. Fracchia F. Manganaro Human Rights and the Environment edited by Nicola Gullo editoriale scientifica sergioprozzillo.com Human Rights and the Environment PERCORSI DI DIRITTO AMMINISTRATIVO Collana diretta da Gian Franco Cartei, Fabrizio Fracchia, Francesco Manganaro COLLETTANEE 65 Collana d iretta d a Gian Franco Cartei Fabrizio Fracchia Francesco Manganaro Comitatoscientifico Pascale Gonod Università Panthéon-Sorbonne (Paris I), Componente d ell’Istituto universitario d i Francia Denis Galligan Università d i Oxford Estanislao Arana Garcia Università d i Granad a Mario P. Chiti Università d i Firenze Gu id o Corso Università d i Roma Tre Giand omenicoFalconUniversità d i Trento Clau d ioFranchini Università d i Roma Tor Vergata AntonioRomanoTassone Università d i Messina HUMAN RIGHTS AND THE ENVIRONMENT Legal, Economic and Ethical Perspectives Edited by Nicola Gullo Editoriale Scientifica Napoli Il volume è stato finanziato con il Fondo di Finanziamento per la Ricerca di Ateneo 2 0 1 8 /2 0 2 1 del prof. Nicola Gullo (Università degli studi di Palermo). I Volumi collettanei e gli Atti di Convegni sono sottoposti a una procedura di referaggio interna al Consiglio di Direzione (oppure svolta dai direttori responsabili) Proprietà letteraria riservata © Copyright 2 0 2 1 Editoriale Scientifica srl via San Biagio dei Librai, 3 9 8 0 1 3 8 Napoli ISBN 9 7 9 -1 2 -5 9 7 6 -1 0 5 -7 For Tonia with love ACKNOWLEDGEMENTS I wish to thank in particular Professor Giuseppe Verd e, ex-Director of the IURA Department, Professor Ald o Schiavello, Director of the Law Department, and Isabel Trujillo, the Human Rights PhD Program Coord inator, for the support they have given to the initiative of the Summer School and to the publication of this book. Special thanks should also be ad d ressed to Giulia Sajeva, as she provid ed precious and irreplaceable collaboration for the realization of the Summer School and the preparation of the present work. Finally, a heartfelt thanks also to Professor Denis Gailor for his important linguistic support. INDEX Introd uction An Interdisciplinary Approach to the Environmental Problem in the Perspective of Human Rights XIII NICOLA GULLO SECTION 1 CULTURAL AND PHILOSOPHICAL TRENDS ON PROTECTION OF THE ENVIRONMENT 1 . Between Ecology and Environmentalism 3 FRANCESCO VIOLA 2 . Development of a Theology of the Environment 23 PAUL HAFFNER 3 . Enlightenment is the Intimacy of All Things 55 THANISSARA SECTION 2 PROTECTION OF THE ENVIRONMENT IN SUPRANATIONAL LAW 4 . Human Rights and the Environment in the Dynamics of International Law: Past and Future 79 ELENA CARPANELLI 5 . ‘Global Public Goods’ and International Law: Insights from International Forest Protection 111 ENZA TRAMONTANA 6 . Environmental Policy of the European Union: Towards High Environmental Protection 141 JOSÉ FRANCISCO ALENZA GARCÍA 7 . Some Reflections on the Notion of ‘Landscape’ in Domestic and International Law MARIA IMMORDINO 163 X I NDE X SECTION 3 THE PROTECTION OF THE ENVIRONMENT IN NATIONAL LAW 8 . Outline of ‘Local’ Environmental Protection 181 ALBERTO CLINI 9 . The Recent Italian Reform on ‘Eco-crimes’ 203 LICIA SIRACUSA 1 0 . Civil and Procedural Protection of the Environment in Brazil 233 RAQUEL DIAS DA SILVEIRA 1 1 . Environmental Licensing as an Instrument of the Brazilian Environmental Rights Act: an Analysis of the Setbacks of the Constitutional Amendment, Proposal 6 5 /2 0 1 2 , in Brazil, and the Spanish Legislation 251 ANGELA CASSIA COSTALDELLO - KARIN KÄSSMAYER 1 2 . Reflections on Public Policies in the Field of Drinking Water 263 MIRIAM MABEL IVANEGA 1 3 . Environmental and Traditional Indigenous Culture Protection: the Colombian Case 277 GLORIA AMPARO RODRÍGUEZ SECTION 4 ECONOMY AND THE ENVIRONMENT 1 4 . The Inalienable Right of Nature. Economics Faced with Irreversibility 297 SIMONE D’ALESSANDRO 1 5 . Environmental Taxation and Human Rights 309 CARLOS MARÍA LÓPEZ ESPADAFOR 1 6 . Legislation on Waste: Relations and Influences Between European Law and National Law 323 SALVATORE MANCUSO 1 7 . Municipal Solid Waste Management: Issues and Perspectives 339 GASPARE VIVIANI - GIORGIO MANNINA 1 8 . Effect of Restoration in the European and Italian Regulation on Compesation for Environmental Damage GIUSEPPINA PISCIOTTA 353 XI IN DE X SECTION 5 HUMAN RIGHTS AND THE ENVIRONMENT: A DIFFICULT BALANCE? 19. Environment and Duties 363 FABRIZIO FRACCHIA 20. The Evaluation of Environmental Risk: the Precautionary Principle 379 FABIO SAITTA 21. Productive Installations and Public Works: Conflicts on the Choice of Site 395 GUIDO CORSO 22. Environmental Authorisations Between Flexibility, Proceduralisation and Dynamism 405 PAOLA SAVONA 23. Environmental Public Law: NGOs’ locus standi in Italian Case Law 421 MARCO MAZZAMUTO 24. Procedural Rights on Environmental Law 433 NICOLA GULLO 25. Climate Change, Human Rights and Global Justice 459 ISABEL TRUJILLO 26. Human Rights and Environmental Protection in Namibia. A Case Study on the Khwe people of Bwabwata National Park GIULIA SAJEVA 27. Conclusions: the Relationships Between the Environment and Human Rights 473 495 NICOLA GULLO List of Contributors 497 INTRODUCTION AN INTERDISCIPLINARY APPROACH TO ENVIRONMENTAL PROBLEMS IN THE PERSPECTIVE OF HUMAN RIGHTS Nicola Gullo In the contemporary world, environmental issues are of indisputable prominence. This can be seen in the central role played by environmental goals in most public policies and in the extraordinary interest showed by the public toward ecological emergencies. The transformation of the Earth as a consequence of human action is deep and radical, and it’s mostly due to population growth and urban area expansion, and to intense exploitation of natural resources. To explain humanity’s modern relation with nature, scientific literature has developed the concept of Anthropocene (Crutzen and Stoermer, 2 0 0 0 ; Crutzen, 2 0 0 2 ; Steffen, Crutzen and McNeill, 2 0 0 7 ; Zalasiewicz, Williams, Haywood and Ellis, 2 0 1 1 ). This term serves to indicate the historical period which started with the Industrial Revolution, at the beginning of the nineteenth century, marked by the driving force of coal and steam (Hamilton 2 0 1 5 ); according to another classification, the period started in the middle of the twentieth century, coinciding with the great industrial acceleration and the first thermonuclear bomb tests.1 Some scholars have recently proposed that the most appropriate notion should be that of ‘Capitolocene’ –the ‘age of capitalism’ –considering that the primary effect of the capitalist model is separation between Humanity and Nature and reliance on natural resources for economic development (Malm, 2 0 1 5 ; Moore, 2 0 1 6 ). This approach has mainly been adopted in the field of political ecology, which examines the mutual relations between environmental and political factors, and economic and social factors (Bryant and Sinead, 1 9 9 7 ; Robbins, 2 0 1 9 ). Regardless of terminology, the consolidation of the modern economic system has brought –together with the increased production of goods and the consequent improvement of human well-being –a serious alteration of the ecological status of many parts of the planet, and is contributing, according to most scientists, to climate change through the emission of greenhouse gasses (McNeill, 2 0 0 0 ; Vince, 2 0 1 9 ). Subcommission on Quaternary Stratigraphy 2 0 1 9 : Working Group on the Anthropocene, in http://quaternary.stratigraphy.org/working-groups/anthropocene/. 1 XIV H UMAN R IG HT S AND TH E EN VIRONM ENT In response to global environmental challenges, such as the transversal spread of pollution, the loss of biodiversity, desertification, and global warming, international organizations and national authorities have developed increasingly targeted policies and sophisticated environmental laws. These approaches are multileveled and polycentric and set environmental priorities under the light of the principle of sustainable development (Nespor, 2 0 0 9 ; Fracchia, 2 0 1 0 ). This is a principle which revolves around defense of various environmental elements, and regulation of particular activities or products (Dell’Anno and Picozza 2 0 1 2 ; Ferrara and Sandulli, 2 0 1 4 ; Fracchia, 2 0 1 5 ; Caravita, Cassetti and Morrone 2 0 1 6 ; Rossi, 2 0 1 7 ; Viñuales and Lees, 2 0 1 9 ). Protection of endangered species, conservation of non-renewable resources and reduction of pollution are some of the new actions that are aimed at influencing economic development in the attempt to make it more sustainable. Interestingly, the objectives and characteristics of the legal instruments for environmental protection have changed over time and, according to a recent theory, it is possible to distinguish ‘four generations’ of environmental law (Arnold, 2 0 1 1 ). The current phase –the ‘fourth generation’ – is characterized by a ‘complex regime’, where to remedy environmental problems the prevailing approach is multimodal and integrationist, encouraging the creation of a dynamic interaction between social, legal, and ecological systems. In fact, this model ‘consists in the use of multiple modes and methods of regulation, but in more integrated ways than prior generations of environmental law’ (Arnold, 2 0 1 1 ). Although this model has been established for the analysis of U.S. environmental law, it can be used as a general paradigm to examine other legal experiences, because it represents ‘a viable response to the multilayered complexities presented by global environmental challenges’ (Arnold 2 0 1 5 ; Long 2 0 1 5 ). In this perspective, the juridical dimension of environmental protection activities changes in a profound way, and environmental law is increasingly globalized, having formed a network of connections between institutions and norms of various countries and international organizations. At the same time, awareness of the social relevance of environmental issues has grown increasingly strong, as demonstrated by the emergence of an environmental justice movement, which highlights and tries to oppose inequities in distribution of environmental risks and resources. Moreover, the social aspects of global environmental change are gaining major prominence, especially in the context of climate change, which has become a priority for international institutions (Sands, 2 0 1 2 ; Dupuy and Viñuales 2 0 1 5 ; Kramer, 2 0 1 6 ; Rossi, 2 0 1 6 ). To address climate change and to limit its negative social consequences, it is also necessary to promote actions targeting social values+ that can combine the conversion of energy policies with the introduction of appropriate measures of protection for poor and vulnerable communities. In fact, environmental change increases the risk of political instability, violent conflict over resources, and large-scale migration of populations to escape rising seas and Introd uction XV drought-driven problems. For this reason, it is no surprise that significant actors not traditionally associated with environmental activism, such as the Catholic Church, now claim and insist that climate change should be examined and addressed from the perspective of ethics and social justice. In consideration of these social issues, the new environmental law moves towards new directions. In recent years, the approach toward ecological issues seems to be moving away from the sustainability paradigm in favor of adopting the concept of “resilience”, which implies a dynamic model seeking to build on the ability of communities to self-respond and adapt to enviromental changes, emphasizing the role of the responses of local policies and social systems. Moreover, the relationship between environmental law and human rights is becoming increasingly stronger in both theoretical space and legal regimes, as recently demonstrated by the new Latin American constitutions. The connection between environmental issues and human rights has become particularly evident in relation to inequitable impacts of global environmental problems: what is emerging is a double dependence. On one hand, in a world whose nature is depleted and destroyed, full protection of dignity, freedom and equality cannot actually be guaranteed. On the other hand, the promotion of human rights –such as the right to information and political participation, and the right to access traditional natural resources –is essential for an adequate defense of the environment, because it makes politicians accountable and it makes the environment valuable for economic actors, allowing peoples and citizens to act as conservationists. This book analyses essential aspects of international and domestic environmental law, but it also opens up to an ampler transversal reflection on the relationship between conservation of the environment and guardianship of human rights. The aim, while also trying to examine critical issues, is to understand whether the language of human rights can address the new ecological crisis or whether new or different legal categories should be used. The book is divided into five sections to allow for the study of the numerous points of view, according to an interdisciplinary approach, absolutely necessary for an authoritative scientific investigation. The first section presents the philosophical and theological roots of environmentalism to reconstruct how environmental ethics are changing. In this context, Viola, after having considered philosophical movements of environmentalism and having distinguished between holistic and relational ethical views, proposes a model of integral relational ecology, which concerns “common” management. This solution arises as a third way between utopian ecologism and anthropocentric environmentalism and seeks to achieve a recovery of rights and rule of law for the governance of nature and for distributive justice. Furthermore, this section also intends to show the support of religious ethics for the promotion of an ecological culture, in particular by taking XVI H UMAN R IG HT S AND TH E EN VIRONM ENT into account the development of a Christian theology of the environment, with the reflection of Haffner, and the role of Buddhist philosophy in realizing a more equitable and eco-compatible world, through the chapter by Thanissara. The second section considers the evolution of international and European law on the environment and the impact of ecological issues on protection of human rights. In this perspective, the chapter by Carpanelli examines the close relationship between the environment and human rights under international law, highlighting the different legal instruments or jurisprudential approaches for the promotion of procedural and substantive environmental rights. Moreover, the reflection by Tramontana concerns the recognition of “global public goods” in international law, looking at a particular case, namely that of sustainable forest management and protection. The chapter by Alenza García presents the general framework of European environmental law and identifies basic characteristics of EU policy in natural protection, to explain her great influence on Member States. In the analysis by Immordino, the “landscape” notion is examined not only in the dimension of national law, but in the light of the changes introduced by the European Convention on Landscape. The third section analyses some particularly important national experiences in environmental guardianship, making a comparison between the Italian and Spanish legal model –in the chapters by Clini, Siracusa, and Costaldello, and Kässmayer - and that of the Latin American states –with contributions by Da Silveria, Ivanega and Rodríguez, who present the Brazilian, Argentine and Colombian cases. The fourth section pertains to the difficult relationship between environment and economic development which is examined not only from a legal point of view –in the chapters by López Espadafor and Pisciotta – but also from a technical perspective, with a reflection by D’Alessandro on the strategy that can lead capitalism system towards a new socio-ecological regime. Particular focus is reserved for waste management, one of the most important challenges for environmental policies, which is analyzed with reference both to the legal system –in the chapter by Mancuso –and operational problems –in the contribution by Viviani and Mammina. The last section focuses on the heart of the problem and investigates the controversial aspects that tie the thematic of human rights to the maintenance of the environment, facing different matters from different points of view. In the chapter by Fracchia, the theory of the subjective right to a healthy environment, which has recently inspired many scholars, is strongly criticized, because it reflects, yet again, an anthropocentric model and appears inadequate for building effective legal instruments. Accordingly, the only possible perspective for environmental law seems to be that of embracing of the paradigm of duties, under the light of the principle of sustainable development. The contribution by Saitta aims to explain how the precautionary principle is applied in environmental law by public Introd uction XVII institutions to manage risk in cases of scientific uncertainty, focusing in particular on European case law. In the chapters by Corso, Savona, Mazzamuto and Gullo, the analysis concerns the degree of environmental protection in areas of particular importance, examining the methods of balance between environmental and economic development in the sector of public works and in authorization procedures, while also evaluating the role of environmental nongovernmental organizations, especially in judicial review, and the relevance of procedural rights in the context of policy decisions about the environment. Finally, the reflections by Trujillo and Sajeva seek to focus on the possibility of using the category of human rights to resolve major ecological issues from different points of view –climate change and the role of indigenous people for conservation of the environment –in an attempt to reconcile environmental rights with the dimension of responsibility. Bibliography Arnold, Craig A. 2 0 1 1 . Fourth-Generation Environmental Law: Integrationist and Multimodal. William & Mary Environmental Law and Policy Review 3 5 : 7 7 1 -8 8 4 . Arnold, Craig A. 2 0 1 5 . Environmental Law, Episode IV: A New Hope? Can Environmental Law Adapt for Resilient Communities and Ecosystems? Journal of Environmental and Sustainability Law 2 1 : 1 –4 5 . Bryant, R.L., Sinead, B. 1 9 9 7 . Third World Political Ecology. London and New York: Routledge. Caravita, B., Cassetti L., and Morrone A. (a cura di). 2 0 1 6 . Diritto d ell’ambiente. Bologna: il Mulino. Crutzen, P.J., and E.F. Stoermer. 2 0 0 0 . The Anthropocene. International Geosphere-Biosphere Programme, Newsletter 4 1 : 1 7 –8 . Crutzen, P.J. 2 0 0 2 . Geology of Mankind. Nature 4 1 5 : 2 3 . Dell’Anno, P., and Picozza, E. (a cura di). 2 0 1 2 . Trattato d i d iritto d ell’ambiente. Vol. I, Principi generali. Padova: Cedam. Dupuy, P.M., and Viñuales, J.E. 2 0 1 5 . International Environmental Law. Cambridge: Cambridge University Press. Ferrara, R., Sandulli, M.A. 2 0 1 4 . Trattato d i d iritto d ell’ambiente. Vol. I, Le politiche ambientali, Lo sviluppo sostenibile e il d anno, a cura di Ferrara, R., Gallo, C.E. Milano: Giuffré Editore. Fracchia, F. 2 0 1 0 . Lo sviluppo sostenibile. Napoli: Editoriale Scientifica. Fracchia, F. 2 0 1 5 . Environmental Law. Napoli: Editoriale Scientifica. Hamilton, C. 2 0 1 5 . “L’anthropocène est l’événement le plus fondamental de l’histoire humaine”. Med iapart (Nov. 5 ), 2 0 1 5 , https://www.mediapart.fr/journal/culture-idees/0 5 1 1 1 5 /clive-hamilton-l-anthropocene-est-l-evenement-le-plus-fondamental-de-l-histoire-humaine. Kramer, L. 2 0 1 6 . EU Environmental law. London: Sweet & Maxwell. Long, A. 2 0 1 5 . Global Integrationist Multimodality: Global Environmental Governance and Fourth Generation Environmental Law. Journal of Environmental of Environmental and Sustainability Law 2 1 , no. 1 : 1 6 9 -2 0 7 . XVIII H UMAN R IG HT S AND TH E EN VIRONM ENT A. Malm, The Anthropocene Myth, Blaming all of humanity for climate change lets capitalism off the hook. Jacobin (Mar. 3 0 ), 2 0 1 5 , https://www.jacobinmag.com/ 2 0 1 5 /0 3 /anthropocene-capitalism-climate-change/. McNeill, J.R. 2 0 0 0 . Something New Und er the Sun. An Environmental History of the Twentieth-Century World . New York –London: W.W. Norton & Company (trad. it. 2 0 0 2 - 2 0 2 0 . Qualcosa d i nuovo sotto il sole. Storia d ell’ambiente nel XX secolo. Torino: Giulio Einaudi editore). Moore, J.W. (ed.). 2 0 1 6 . Anthropocene or Capitalocene? Oakland: PM Press. Nespor, S. 2 0 0 9 . Il governo d ell’ambiente. La politica e il d iritto per il progresso sostenibile. Milano: Garzanti. Robbins, P. 2 0 1 9 . Political Ecology: A Critical Introd uction. Hoboken, New Jersey: Wiley-Blackwell. Rossi, G. 2 0 1 7 . Diritto d ell’ambiente. Torino: Giappichelli Editore. Sands, P. 2 0 1 2 . Principles of International Environmental Law. Cambridge: Cambridge University Press. Steffen, W., P. J. Crutzen, and J. R. McNeill. 2 0 0 7 . The Anthropocene: Are humans Now overwhelming the great forces of nature? AMBIO: A Journal of the Human Environment 3 6 , no. 8 : 6 1 4 –2 1 . Vince, G. 2 0 1 9 . Ad ventures in the Anthropocene. London: Penguin Random House. Viñuales, J.E., and Lees, E. 2 0 1 9 . Oxford Hand book of Comparative Environmental Law. Oxford: Oxford University Press. Zalasiewicz, J., Williams, M., Haywood, A., and Ellis, M. 2 0 1 1 . The Anthropocene: a new epoch of geological time? Philosophical Transactions of the Royal Society 3 6 9 , no. 1 9 3 8 : 8 3 5 –8 4 1 . SECTION 1 CULTURAL AND PHILOSOPHICAL TRENDS ON PROTECTION OF THE ENVIRONMENT CHAPTER I BETWEEN ECOLOGY AND ENVIRONMENTALISM Francesco Viola SUMMARY: 1 . Ecology as theory and environmentalism as practice. –2 . The order of nature as a choice. –3 . Holistic Ecology and Relational Ecology. – 4 . Political ecology. –5 . A new way for environmentalism: the commons. – 6 . Commons as a source of rights. –7 . Environmental new institutionalism. 1 . Ecology as theory and environmentalism as practice Ecology has two facets, that of science and that of wisdom (ecophilosophy). As a science, since its origin, also in virtue of its Darwinian roots, it has proposed to reorganize all the sciences that deal with the relationships between an organism and the environment, so as to reconstruct all the factors that make its existence and development viable. It therefore has a holistic vocation, which, however, has to reckon with the reductionist tendencies of the sciences to which it makes reference. As wisdom, it aspires to a general conception of nature, of a philosophical or even a religious character, giving rise to an ecological culture that animates constantly increasing groups and social agitations. The fact remains that the configuration of nature as an ecosystem is a by-product of natural science, just as configurations of nature as creation, as a set of useful goods, as territory, as a store of resources, are a by-product of theology, of law, of politics and of economics (Viola 1 9 9 5 ). Nature has many faces, because we only arrive at it through culture (Viola 1 9 9 7 , 3 26). The ecological conception of nature too is a product of human culture. This holistic vision of nature is by no means unitary and compact, but is ramified in an archipelago of different versions, which only have in common one basic principle, the general principle of the interconnectedness of living beings in the context of the physical conditions necessary for their existence (Commoner 1 9 7 1 , 2 9 ). This principle also unites ecology as wisdom with ecology as science. There is obviously an interaction between the scientific perspective and the philosophical one. The former furnishes the empirical basis to which the latter in turn resorts and the latter influences the former, driving it to broaden its investigations, taking in ever-new research sectors. Since 4 FRANCESCO VIOLA man’s work interferes more and more profoundly with the equilibriums of nature, human sciences too are involved in the ecological issue, mainly meaning economics and politology, that is to say exploitation of resources and organization of society. In this way the scientific approach loses its original compactness, which in itself was already problematic. It has to be recognized that today the ecological issue affects a conglomerate of heterogeneous scientific disciplines, impossible to place under unitary scientific management, which instead was the original aspiration of the naturalist Ernst Haeckel, who in 1 8 6 6 coined this term to launch a new field of scientific research. The multiplication of sciences interested in the ecological issue tends to confer greater and greater centrality on ecological ethics as the control room for the use of information coming from heterogeneous disciplinary sectors. Since the ecological ethics is dependent in turn on ecophilosophy, one easily understands the increasing practical importance that the philosophical and cultural debate on this theme is taking on. And it is precisely at this theoretical aspect of the ecological question that this paper intends to look. In this field it is difficult to reconcile theory with practice. Theory – as has already been observed –has a holistic aspiration in that the general principle of interconnectedness accepts no confines and would therefore require world government of the protection of nature. Practice, instead, is always circumstantial and particular, necessarily linked to circumscribed horizons. Theory is ecological, while practice is environmental. Here lies the root of the distinction between ecology and environmentalism, though we are talking about fluctuating denominations influenced by contingent uses. As a rule we can trace out this distinction on the basis of three criteria: that of the goal, that of the object or content and that of the extension. As regards the goal, the original target of ecology is the strictly scientific one regarding knowledge of nature, while environmentalism is an action movement that proposes to stimulate an ethical conscience and a lifestyle sensitive to the effects of human behaviours on human and nonhuman nature. It therefore has a prescriptive character and not, like ecology, a descriptive one. Environmentalism appears as political, social and legal action. This programme of action, which is emotionally nurtured by direct experience of environmental decline, requires theoretical bases that are more and more rigorous on the scientific plane, in order also to adequately justify the sacrifices that are required of economic powers and consumers. In this way one understands why, in the history of relations between ecology as science and environmentalism as practice, in the last few decades there has been a progressive process of rapprochement, down to acceptance, by the latter, of the very concept of ‘ecosystem’. Nevertheless, the ecosystem itself –as has already been said and will be seen more clearly afterwards –can be seen in a different way and this means that the use of scientific data is not univocal and is open to challenges and debates in which politics and ethics interact with natural science. I. Between Ecology and Environmentalism 5 The object of environmentalism, that is to say its specific approach to nature, does not fully coincide with that of ecology. Ecological thought, especially in its most radical versions, those of Deep Ecology, does not love to speak of ‘environment’ or of ‘environmentalism’ (Naess 1 9 7 3 and 1 9 8 9 ), since in this term it sees a residue of an anthropocentric culture. The environment seems to have a functional or subordinate character in relation to man as its reference point. The environment is the place inhabited by man or the set of living and nonliving beings that surround him. The ecosystem, by contrast, has neither centre nor outskirts, but is only a network of horizontal relationships in which human beings are parts in the same way as the other ones. And it is for this reason that the notion of environment is more suitable for traditional legal thought, so much so that around it the real legal and political tools in defence of nature are worked out. They constitute an important aspect of the welfare state, concerned to protect not only public health but also natural and cultural goods. All this would be insufficient if there were not also an intervention on the plane of the international and transnational law (Munari and Schiano di Pepe 2 0 1 2 ). Nevertheless, by itself the notion of environment is not ‘anthropocentric’ and must not be confused with that of ‘landscape’, which instead is anthropocentric. However, it is ‘anthropomorphic’ not only in the sense in which all human thought is necessarily anthropomorphic, including ecological thought, but also because of the specific fact that the prescriptions of environmentalism are addressed to human beings and pay attention to the harmful effects for the environment produced by human actions. Even if the environment is not necessarily thought of as functional to human beings, the fact remains that they are the only beings to which a responsibility for the environment, where their actions have or can have a perverse effect, can be attributed. In this sense and in any case man is not a part of the environment in the same way as the other parties: man is the only being that has at the same time rights and duties, that is to say a sense of justice. If we wish, this too can be considered as an anthropological point of view that is not merely utilitarian but also benevolent. Lastly, ecology and environmentalism also differ for the extension of their field of research and action. While as a principle the scope of ecology is global and holistic, that of environmentalism is local and sectorial. The distinction between global and local is not absolute, but depends on the point of view (Elster 1 9 9 2 and cf. also Walzer 1 9 8 3 ). The local dimension can indicate a portion of nature or a territory over which a political power has jurisdiction. In this case environmental policy will have national or regional scope. But ‘local’ can also mean ‘sectorial’, that is to say concerned with specific environmental problems (for instance, pollution, conservation of resources or demographic growth) or even more particular aspects of the latter (for instance, toxic waste and dangerous substances) and concentrating on the way of facing these problems each time. This strategy is deemed a more promising one than the globalistic one, which because of the enormousness of the issues at stake is often paralyzing on the 6 FRANCESCO VIOLA practical plane. Nevertheless, this approach substantially gets round the general principle of interconnectedness, which is at the basis of ecology as science and as philosophy. Critics of sectorial environmentalism also observe that it substantially aims at provisional solutions to staunch or reduce environmental damage without seeking to eliminate them once and for all (conservative environmentalism). The very formula of ‘sustainable development’ can be criticized as a search for a compromise that in the end is always advantageous for man, interested in not entirely chopping off the branch on which he is perched (Stewart 2 0 1 3 ). But there is also a further variation regarding the local dimension. It concerns the criteria to follow in facing sectorial problems within environmental damage. One wonders if they have a general scope or depend on the political and cultural contexts in which they arise, so there is not a standard way to face the same environmental issues all over the world. It is more logical to think that there is not one and only one reasonable environmental policy, because in the field of practical reason the correct answer is often not a single one, and that in this case the cultural factor has to be of some importance. Nevertheless, the process of expansion of environmentalism beyond national and regional confines imposes uniform political and legal prescriptions (culminating in international law), which may prove unsuitable or penalizing at a local level. In conclusion, the dialectical tension between ecology and environmentalism is referable to that between thought and action: thought tends to universality and generality, while action is always particular. The development of science makes it possible to know better, but never fully, the distant, and often unintended effects, of human actions, reminding us that being situated in a place on earth does not relieve us of responsibility towards nature as a whole. 2 . The ord er of nature as a choice It must not be forgotten that all ecological and environmentalist problems rest on a basic philosophical issue that places humankind face to face with an entirely new dramatic choice. From natural science in itself one can only derive legal and ethical norms after certain values are recognized and have been taken as the goals of action (Viola 2 0 1 1 ). Thus, maintaining that if a given human behaviour is seriously harmful for nonhuman nature it has to be forbidden implies the evaluative judgment that damaging nature is evil. However, natural science as such does not have the authority to affirm this, unless it embraces scientism, which is an ideology. It is necessary to appeal to an ethical judgment required in turn by the effects of technological and industrial development put to use by capitalistic economy. As long as man was not able to modify the order of nonhuman nature, this appeared as necessary to him, that is to say as a set of physical and biological laws that could not be violated without falling into chaos. This I. Between Ecology and Environmentalism 7 necessity was endowed with moral value only insofar it was interpreted as the divine will. But modern science does not need this hypothesis and therefore this necessity in his eyes is completely devoid of ethical meaning. But when technology has shown the possibility of modifying and even overwhelming the order of nature, then it makes sense to wonder whether it was right or not to safeguard this order as we found it. On the other hand, the principle of disorder is present in order, as entropy has shown by throwing into contingency the eternal laws of modern science. It therefore begins to make sense to wonder whether this ‘necessity’, having become unnecessary, must be respected and to what extent. In this way the order of nature becomes the object of ethical problems –not meaning a choice between other possible orders but rather the decision to safeguard or not that contingent order in which we find ourselves living. It now appears clear that the illusion of Laplace has been shattered (Capek 1 9 6 1 ), that is to say the order of the world is contingent, that it was formed through long processes of selection, and that human life participates in this history of nature and is inseparably linked to all other natural beings. One also wonders why we have to treat man differently than other natural beings whose evolutionary processes are not subject to ethical evaluation. If man belongs to the ecosystem with the same right as the other parties, why on earth not leave him to conduct his struggle for survival in his own way? The fact that nature has become one of the possible orders of being because of man’s manipulative power also has to be reconciled with the irreversibility of technological action, already stressed by Hans Jonas1 . We are here faced with a double frailty: science does not succeed in foreseeing all the possible effects of technological action (Tallacchini 1 9 9 9 , 5 9 ) and technology is not able integrally to restore what it has destroyed (despite the theses on compensatory justice in Taylor 1 9 8 6 ). The helplessness of the experts –as Fritjof Capra has observed (1 9 8 2 ) –is a characteristic sign of the crisis of contemporary civilization. We can transform the world to our liking, but we cannot backtrack. All this confers particular value on the present order of nature. It is something that is given to us, that we can destroy and that we cannot artificially reproduce. It also needs to be observed that these problems cannot be limited to moral or human good. In this connection, wondering if and why it is The irreversibility of environmental damage is the main difference between the ecology of the ancients and that of the moderns. Apart from that, it is striking to see how old the complaints are about the degradation of nature by man. Plato noted that deforestation of Attica had made the land like a thin body that was all skin and bones (Critias, 1 1 1 a-e) and the Roman naturalist Pliny bitterly remarked on the result of mining: “Spectant victores ruinam naturae”. Cf. Weeber 1 9 9 0 and also Sallares 1 9 9 1 . 1 8 FRANCESCO VIOLA necessary to protect nature also implies an ontological issue, which the ancient philosophers considered ‘ontological goodness’, that is to say reflecting on the intrinsic goodness of nature, on nature as a value in itself2 . This orientation is worked out in wider and wider concentric circles: from protection of the living beings closest to human beings, beginning from the primates, to a shift towards all sentient beings (animal rights) and then towards life in general, that is to say towards organisms composed of living cells and ending with the ecosystem in which natural species support each other in a holistic dimension. Here the theory of intrinsic value has reached its maximum extension, since recognizing that ecological systems have a purpose in themselves also means including rocks, air and water. From all this it must be inferred that nonhuman nature can no longer be simplistically thought of in the category of the necessary ‘de facto datum’. If we can tamper with the order of nature, then we have to ask ourselves if and why we have to respect it as it is, that is to say if it constitutes a limit to the exercise of our rights; we have to ask ourselves if we have the duty to safeguard those bonds between living beings that a history of contingency has woven. The general principle of interconnectedness by itself excludes the dichotomies typical of the modern world, like those between nature and spirit, nature and culture, necessity and liberty. The history of human liberty and that of nature now tend to seek common roots: the former becomes aware of its biological bases and its bonds with corporeity3 and the latter, through the capacity of being different from what it is, becomes the object of a choice and a value, not only ontological, but also moral. Nature opens up its doors to liberty, losing its necessity, but liberty in turn becomes aware of its conditions of possibility. “Liberty is only possible through nature” (Jaspers, 1 9 4 8 , 2 2 8 –my translation). 3 . Holistic ecology and relational ecology Ecophilosophy is not a unitary idea, but allows a great plurality of interpretations of the relationship between man and nature. In it we can approximately distinguish two main currents: holistic and relational ecophilosophy (Mathews 1 9 9 8 ). The Preamble to the World Charter for Nature, adopted by the United Nations in 1 9 8 2 , affirms that “Every form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action”. But care is also taken to point out both that humanity is part of nature and that culture is rooted in nature, so that biodiversity and cultural pluralism are linked to one another. 3 “It remains an open question whether recognizing freedom also means recognizing human nature, since freedom is possible only among natural beings” (Spaemann 1 9 9 4 , 7 9 ). My translation. 2 I. Between Ecology and Environmentalism 9 According to the holistic vision there are not strictly individuals or separate entities, but only relationships that provisionally coagulate in forms of life functional to the existence of the ecosystem, which is the only entity that has a stable ontological meaning (Lovelock 1 9 7 9 ). The qualities or the prerogatives that we are wont to attribute to determined beings in reality belong to the ecosystem as such. Nature is personalized and man is naturalized, but this communication of quality can be understood with different accentuations of gradualness. This holistic vision can in turn develop according to a projection of the subjective conscience into a transpersonal conscience proper to all nature (transpersonal ecology) or into postulating total absorption of the human self in natural processes. On one side, conscious identification with the biotic community is a broader way to perceive the self and its relationship with otherness, so that taking care of other beings is not perceived as different from taking care of oneself (Naess 1 9 8 7 ). The self is identified with the whole world (cosmocentrism). However, transpersonalism has to neutralize people as individuals and their ontological difference from other beings to look to a broader and more comprehensive Self. People having been removed as individual entities, transpersonalism actually becomes a form of impersonalism, which, however, does not intend to arrive at total negation of the person, but attempts to preserve some prerogatives of its own after being stripped of the negative one of the egoistic self, which is the stronghold of possessive anthropocentrism. The impersonal is an imprint left by the single person. Behind the most generous and altruistic expressions of Deep Ecology –which goes as far as to challenge the very presence of man on earth if it is seriously prejudicial for the equilibrium of the ecosystem –inevitably one clearly glimpses the imprint of the person in his or her noblest altruistic manifestations. On the other side, complete naturalization of the human being, as suggested in Land Ethics by Aldo Leopold (1 9 6 8 ), leads to the ecosystem itself being equipped with an unconscious biological function of selfprotection, with the disappearance of the strictly ‘moral’ perspective. It is not human beings that are to protect tropical forests: it is the latter that protect human beings. Nevertheless, in this way it proves very difficult to develop an ecological ethic in that moral good requires an evaluating subjectivity for which the ontological goodness of the ecosystem is perceived as a goal of action and a source of duties. Total naturalization of the human being suppresses this possibility and consequently deprives ecology of a proper ethical justification. For this reason holistically oriented ecophilosophers prefer to opt for transpersonalism, seen in various ways. The relational version of interconnectedness seeks to save at one and the same time the identity of the beings that populate the ecosystem and their ontological differences. Besides, protection of biodiversity would not make sense if the importance of differences were lost. However, the radically relational character of every being means that it cannot be 10 FRANCESCO VIOLA considered separately from the whole without falling into nothingness as well as into non-existence. The relational version can be upheld with different degrees of intensity, so that this conception is placed between elimination of essences, proper to the holistic version, and the essentialist ontology of the old metaphysics. Relational interconnection is interdependence. This means that the relationships can be of different types: symmetrical and asymmetrical, ascendant and descendant (like those of the food chain), linear and circular, direct or indirect. Every being is distinguished from the other by the configuration of the relationships that it has with other beings, that is to say by the role that it plays in its own environment of life. In this context the natural world appears as a community in which the forms of relationship serve to specify beings and therefore also to distinguish them from one another. The expression ‘biotic community’ is strictly speaking suited to the relational conception and indeed it was soon abandoned by the holistic conception. In a community, identity is found in the role played by each one. Just as people are fathers because there are children (asymmetrical relationship) and there are brothers because there are brothers or sisters (symmetrical relationship), so people are human beings because there are relationships with other human and nonhuman beings in the presence of given material and climatic conditions. Playing one’s own role, one protects the biotic community and realizes oneself. There is thus prefigured a sort of ecological communitarianism. Maintaining the balance of the relations between heterogeneous factors and their delicate dosing is what renders possible life on earth and the very existence of human beings. Accordingly the natural study of man, as a being endowed with the greatest complexity of relationships, becomes the guide to understanding the very physical conditions of the universe. The naturalization of man thus becomes, paradoxically, one reason more to emphasise his dignity. This ‘anthropic principle’ (cf. for instance Carr and Rees 1 9 7 9 ) has resulted in varied interpretations and developments, among which one can mention the return of the teleological explanation. But the most important thing is that the bonds between human beings and the world are restored and that their common destinies are recognized. From this point of view ecology is humanized (human ecology), though carefully avoiding the anthropocentric principle. The principle of interdependence makes it possible to establish the connections between nature and culture, between the order of the world and the organization of human societies. The ecological issue becomes a problem of justice and the problems of justice themselves can be treated as an ecological issue. On one side, in the context of distribution and exploitation of resources one must bear in mind not only the rights of human beings but also the respect due to nature, which thus becomes a criterion of justice. On the other side, injustices and social inequalities can be considered, in addition to their effects on other species, also as ecological damage inflicted by human beings on other human beings. I. Between Ecology and Environmentalism 11 Justice towards humanity is connected with justice towards nature, down to the point of producing cosmopolitical visions in the strict sense of the term. Hence political ecology arises, which overcomes the original distinction between ecologism and environmentalism, because in politics human responsibility is in the forefront but at the same time its object is now extended to the whole order of the world. The most burning themes of political ecology and the manifold national and international organizations, official and unofficial, that promote it are –as everyone now knows –those of ozone depletion, global warming, acid rain, air pollution, water shortage and the decline in its quality, disruptions caused by global climate change, desertification, loss of topsoil, nuclear waste disposal, depletion of global fisheries, impoverishment of biodiversity, the growth of the global population, and environmentally related illnesses. But to these we have to add the social injustices of capitalism and those caused by ecological policies themselves consisting above all in making the poorest and weakest pay its costs and the externalities. 4 . Political ecology Political ecology as a programme of public action inevitably intercepts political ideologies and is diversified according to the main ideological currents (Clark 2 0 1 2 ). We have, however, to distinguish between long consolidated political conceptions, which now welcome the ecological issue as a new and important political and economic drive, from those that are constituted from scratch around the priority objective of the protection of nature and biodiversity, with consequent effects on the organization of social life. If we wish to maintain the distinction between environmentalism and ecologism, we can ascribe to the former not only the conservative orientation and the liberal one, which are distinguished by the way of treating the market for the purposes of the ecological crisis, that is to say either as free of restrictions or as necessarily regulated, but also deliberative democracy insofar as it also extends to the ecological issue the communicative rationality of the ethic of public discourse (Dryzek 2 0 0 2 ). Ideologies of the past that are today in decline find in the ecological crisis new lifeblood to renew themselves. One example is eco-socialism, which in Marxist thought finds an effective criticism of the exploitation of nature, and another is eco-anarchism, which from the ecological crisis derives new arguments to contest the centralized political power and the dominion of technology. More strictly ‘ecologist’ are, instead, the movements and doctrines that rethink the organization of society from the bases, challenging the socio-political order of the modern state and the present one of the international community and setting out in search of a new cultural and anthropological paradigm, as happens in bioregionalism, which pursues a recovery of the original harmony between nature and culture against the artifice of geopolitics, and in post-modern 12 FRANCESCO VIOLA political ecology, which sees the legal and political categories of modernity as the biggest obstacle to promotion of green values. Something separate, seeing its importance, has to be said about ecofeminism, which rejects the sexist ethic of rights to the advantage of the ethic of care, thus acquiring a conceptual paradigm that, assimilating dominion over women to that over nature, closely links the liberation of the one to that of the other. In conclusion, it can be affirmed that, while the punctum d olens of the relations between holistic and relational ecology is the philosophical one of the importance of natural essences or the identity of beings, the watershed in relational ecophilosophy is that of the distinction between conceptions that pursue an adjustment of the modern legal categories and politics and those that instead deem it necessary to subject them to a profound upheaval, meaning that it is a political issue. Since everyone agrees on the need for a cultural change in the use of goods, in general lifestyle and in the consideration of nonhuman nature, we rightly wonder whether this is possible within the economy-driven and political categories to which the principal responsibility for the ecological crisis is attributed. This question becomes even more dramatic where it is believed that this change has to be so radical as to require a drastic break with the selfish order of power, all-powerful consumerism and the hierarchy of the social classes to the advantage of authentic solidarity sustained by compassion and reciprocal help. Thus political ecology, in which ecologism and environmentalism inevitably come together, is attracted by two opposite extreme tendencies: one which deems it sufficient to broaden the range of action of the legal and political categories of modernity to face the ecological crisis adequately; and one which deems it necessary to enact a radical change of paradigm creating the bases of a palingenesis of the relations between man and nature through a new way of structuring politics, the economy and law. Both solutions are not very convincing and are not really practicable. The dominant paradigm in modernity, represented by the polarity between state and market, between sovereignty on one side and possessive individualism on the other, as well as being belied by increasing transnational interdependence on all fronts, cannot be corrected from inside and in the ecological field leads at the same time to authoritarianism, hostile to citizenship rights, and to monetarization of pollution rights. If it is true that protection of the environment is the privileged locus of the principle of subsidiarity, in that environmental problems are perceived more fully by those people that are directly affected by them, it is also true that protection of the environment requires a strong authority having a major capacity for resistance and pressure that rarely characterizes local governments. Accordingly, protection of the environment is either insufficient or authoritarian. On the other side, recourse to economics is motivated by the conviction that, instead of opposing the display of selfinterest with legal and political constraints of various kinds, it is more I. Between Ecology and Environmentalism 13 efficient to use the same mechanism to reach objectives of common interest through heterogenesis of goals according to the well-known market logic. But this justification has tragically proved counterproductive and contradictory. Indeed, the method of taxing those who pollute increases, instead of decreasing, the taxing power of the state, and above all, from the ethical point of view, subordinates legitimacy of actions to the costs for putting them in place, discriminating between the rich the and poor. Even taking to the extreme the liberalistic tendency of the economy, for which it would be necessary to create a market in which permissions to pollute would become an object of negotiation and transaction and in which powerful multinationals would be the contractual parts against weak local communities, the result would be that of monetizing rights. In this connection, environmentalism calls rights into play, which are silent in ecologism, and it is sensitive to protection of cultural identities. But law and politics exist precisely because not everything is negotiable, and not everything has a price (Sandel 2 0 1 2 ). Law exists precisely to protect citizens from being forced to sell their rights. The palingenetic solution is clearly utopian. With this I do not mean that it is useless or ineffective, because utopias have an important function for the ethical progress of humanity. They help people to become aware that the pathways of practical reason are manifold and that there is not a single possible answer to the way of seeing man’s relations with the world and with other men. Nevertheless, history never starts from nothing, as totalitarianism maintains, but has to take into account the past and the present without indulging in determinisms and with awareness of the need for continual and profound corrections of legal and political categories. This also holds for the history of the interdependence of beings and for man’s relations with the world. There is thus prefigured a third way between maintenance of the modern paradigm and rejection of it: the way of integral relational ecology4 . 5 . A new way for environmentalism: the commons In this overview of legal and political categories, in the light of the relational principle of interdependence and with particular reference to property rights and the practice of democracy, drives from the past are found again that were buried or ignored by the concentration of strong and dominant powers sustained by the aggressiveness of modern science towards nature. In this connection it is out of place to fear a return to the pre-modern epoch or even to the Middle Ages. We must not allow the ideological prejudices of modernity to prevent valorisation of cultural There is also a reference to ‘integral ecology’ in the recent Encyclical Letter of the Holy Father Francis Laud ato si’. On Care for Our Common Home. 4 14 FRANCESCO VIOLA resources that belong to the great narrative of humanity. On one side the past is never repeated in an identical form, while on the other demonizing it derives from a stupid religion of progress. When we find ourselves at a deadlock, at times it is necessary to return to the interrupted pathways of the past to open up new roads. Often reference to the ‘new Middle Ages’ is connected to the institutional dimension, that is to say to the present fragmentation of the centres of power, to the diffusion of a disorderly and transversal polycentrism, no longer linked to given places and therefore globalized, and to porosity of borders. It is like a network that has very many knots but no centre (Castells 1 9 9 8 ). This is an ambiguous situation that does not by itself guarantee respect either for rights or for nature. Everything depends on governance. Nevertheless, environmental protection has to take cognizance of this circulation of powers and their displacement if it wants to be effective. This implies awareness of the impossibility of a single plan of global action; it requires attention to specific situations of a cultural and environmental character and demands diversification of the modalities of action, but also the need for cooperation and consultation. But it is not the institutional aspect that I intend to develop here, because it in turn implies the possibility of opening up new pathways for law and politics. That this is possible is shown, as an emblematic example, by the present-day problems of the commons, on which I will dwell in the conclusion only for illustrative purposes. This is a different way of seeing the relationship between man and goods that challenges once again property rights, which are the most threatening modern legal category for ecologism (Rodotà 2 0 1 3 ). At first sight present-day reflection on commons appears as a maze of visions that inextricably interweave. The general trend is to underline a set of goods that escape the traditional dichotomy between public and private, because their destination would prove to be thwarted by application to them of the regime of private ownership or that of public law. Their inevitable or possible decline would produce double damage: to nature and to man, in that we are talking about goods essential for the realization of human life and for distributive justice itself. This leads us to prefigure appropriate management of these goods, management that is neither public nor private, ‘common’ management as a tertium genus. Therefore, strictly speaking, these goods are qualified as ‘common’, also, and above all, because of their particular management or particular governance. As we know, the pioneering and illuminating researches of Elinor Ostrom (1 9 9 0 ), on the basis of examination of concrete cases, have shown how and on what conditions it is possible to trace out new institutions that allow common management of these goods in a fruitful way. It must not be forgotten that one of the traditional justifications of private ownership appeals precisely to the demands of conservation and valorisation of goods. Ironically, it is assumed that self-interest is beneficial for respect for nature and its protection. But private ownership leads to I. Between Ecology and Environmentalism 15 exclusion of others not only from enjoyment but also from protection of these goods, also frustrating their rights as citizens. The drift of private ownership introduced by possessive individualism has made it necessary on the historical plane to look for other solutions for the governance of particularly important goods. The same must be said, mutatis mutand is,for state management of goods. But, if we distinguish, as we should, between public and state, then common goods are very close to non-state public goods. Between state and market there is the non-state public sphere and civil society. In any case it is necessary to reject the rigid dichotomy between public and private. Many institutions that govern commons are a rich mixture of private-like and public-like (Ostrom 1 9 9 0 , 1 4 ).In short, the governance of these common goods has an eminently pragmatic character. It is necessary to see case by case what regime is most suitable for enjoyment of particularly important external goods, whether material or immaterial, so that they are protected and at the same time remain accessible to everybody. It is important to stress that in these cases there is not opposition but superimposition and convergence between accessibility and conservation of the good, between human rights and protection of nature. Certainly these common goods are difficult to classify definitively. In them we find, one next to the other, heterogeneous categories of goods: natural goods (like water), environmental and ecological goods, social goods (like cultural ones), and immaterial goods (like the web). What do these commons have in common? The usual answer arouses some major perplexities. It is believed that while private goods are excludable and are rivalrous and public goods are non-excludable and are non-rivalrous, common goods are non-excludable and are rivalrous. If by ‘rivalry’ we mean opposition between enjoyment of the good by the single person and enjoyment by others, then it cannot be said that all that the goods today considered as ‘common’ are rivalrous in this sense regarding consumption. This is not the case, for instance, of cultural goods and those linked to knowledge, like the web: on the contrary, the more these are enjoyed the more they grow. We could certainly rephrase the notion of ‘rivalry’, stressing equal access of everyone to enjoyment of these goods and their use, that is to say raising a question of distributive justice. But in this way the notion of rivalry would end up being confused with that of non-excludability or of accessibility, which is a normative and not a factual principle, as instead the condition of rivalry is. The only sensible answer to the question of what is common to goods that are so heterogeneous from so many points of view, from that of extension (down to global commons) to that of enjoyment, is the one that underlines the inadequacy of submitting them to the regime of the market or of the state. A new legal paradigm is required to maintain the character of commonalty on the plane of their management too. And then, on the basis of the territorial or historical circumstances, the sphere of common goods can be broadened or restricted every time that it is necessary to verify or otherwise a close connection between the advantage that every 16 FRANCESCO VIOLA person derives from use of them and the advantage that others also derive from it, as well as between the duties and the burdens that each person takes on themselves by using them and the duties and the burdens that others also take on themselves. In the commons the benefits and the burdens of all the participants are shared and not opposed (as for private goods) or to be set aside (as for public goods) (Zamagni, 2 0 1 5 , 5 8 ). ‘Common’ comes from munus and indicates equitable sharing of duties, just as ‘immune’ indicates absence of duties. 6 . Commons as a source of rights At the origin of our legal civilization there is a very strong conviction that goods on earth do not in themselves specifically belong to anyone, but are available to be used by everybody. The principle of the common destination of goods originates from Stoic philosophy and –as is well known –was incorporated in the thought of the Fathers of the Church. It was still very much present in the thought of Locke and today is still defended by the social doctrine of the Catholic Church (Mellon 2 0 1 2 ). In any case the principle is wholly reasonable and one may also think that it is still a presupposition in Rawls’ thought experiment of the veil of ignorance. Originally all goods on earth are common, that is to say are res omnium or res communes omnium,as Cicero thought. “Secundum ius naturale omnia sunt communia”5 . If they were res nullius, then occupation or apprehensio would be sufficient to justify the exclusion of others from enjoyment of the good. The problem of the subjective right arises precisely to justify the passage from this original state of commonalty to subdivision of ownerships through the property right, which is therefore concentrated in the right of exclusion of others from enjoyment and use of the good. But at first sight it appeared incompatible with the original commonalty of goods and founded only upon reasons deriving from the state of human frailty (Añaños Meza 2 0 1 3 , 1 0 8 -1 0 9 ). Hence it had to be conceived in such a way as not to eliminate entirely the original destination of goods, but on the contrary to favour it. This was the attempt pursued by Francisco de Vitoria, who can be considered as the historical precursor of the theory of commons. According to Vitoria the regime of private ownership or d ominium proprium does not do away with d ominium omnium conceived as a category of public law, which consists in ‘sharing’ (communicatio) in time of necessity, that is as a right to procure what is required to survive (hunting, fishing, firewood), only limited for acceptable reasons, and as a right in the case of extreme necessity; he gives the example of shipwrecked people as a paradigm of the human condition. We are not talking about 5 Aquinas, Summa theologiae, II-II, 6 6 , 2 . I. Between Ecology and Environmentalism 17 examples belonging to the past if we just think about the immigration tragedy in our own day. Vitoria’s thought is also important from another point of view that directly concerns our theme. There are rights and duties that man derives from his relations with the goods of nature. These goods are seen as the source of these rights and these duties rather than as being merely useful or functional to the exercise of pre-existing rights deriving from subjectivity, as instead people are inclined to consider them today (cf. e.g. Rodotà 2 0 1 2 , 1 0 7 ). Certainly there are rights because there are people, but their content and their exercise depend on the existence of certain goods in relation to which there is also the duty of care and respect for commonalty. There are liberties that are justified and modelled by the goods to which they refer and by the modalities of their use. Such is the group of rights that Vitoria considers relational goods: ius peregrinand i et d egend i, ius negotiand i, the right to communication and participation in the common goods of nature6 . These fundamental rights do not precede the relationship with goods, conceived as necessary for their satisfaction. On the contrary, the modality of existence of these goods produces nonindividualistic fundamental rights, that is to say ones governed by the principle of solidarity. Hence the commonalty we are speaking of here should be seen as a triangular relationship between people and goods and of people with one another. Vitoria intends to trace out an intermediary way between the constraint of things on people and the dominion of people over things, between the subordination of the person to an arrangement of things that is presumed to be natural and the person freeing himself or herself from every bond with nature, leading to the loss of the reference point of human intersubjectivity itself. As is well known, Vitoria’s attempt to reconcile the right to ownership with common use failed because of the presumed impossibility of separating the concept of private ownership from excludability of the good, as besides had been already shown by the medieval debate on Franciscan poverty. Nevertheless, Vitoria stressed that using goods is not a purely factual thing or in itself devoid of a legal dimension. There are some rights that derive from the use of things rather than from the prerogatives of subjectivity or from its dominative voracity. 7 . Environmental new institutionalism The return of the problem of commons constitutes an opportunity to go back to these attempts at separation of ownership as exclusion from ownership as common use. This revision is extremely urgent, because the tragedy of commons, whatever anyone says about it, can now be considered a d e facto datum. However, it does not only consist in the environmental 6 De Ind is, I 3 , 3 -4 . 18 FRANCESCO VIOLA disaster, in the depletion of goods that are vital for human beings and also in unfair distribution of resources, but also in the anthropological drift produced by the solipsistic way of seeing human action and liberty itself. Ostrom has shown that on certain conditions this tragedy is avoidable, that is to say on condition that we place responsible and cooperative use at the centre of social action, as opposed to anthropocentric dominion. According to Ostrom the traditional ownership sums up in itself five different types of rights: individual right of access to the resource, individual right to exploit the stock of resources, the shared right of management or rather of participation in the formation of the rules of cooperation, the shared right to determine who can be excluded from access to the resource, and the individual right to alienation of the resources. The holders of the first four types of rights are strictly consumers and managers, while it is only with the addition of the fifth right that strictly speaking they become owners (Ostrom 2 0 0 2 ). It is worth noticing that agency is fully realized in exercise of the first four types of rights and in itself does not also require the fifth one. The latter, that is to say the individual right of alienation and exclusion, makes the relationship with the good purely contingent and entrusts it to the individual will. The cooperative process in the management of commons starts from a situation of interdependence, that is a d e facto datum dictated by things, that is to say linked to use of the same natural or artificial resources, which make it very expensive (though not impossible) to exclude potential beneficiaries from use of them. However, we must here specify that these costs could also concern problems of justice, that is to say have an ethicalpolitical character. This interdependence is not temporary, but is continuous, in that it derives from the nature of those that Ostrom calls ‘common-pool resources’. Under these conditions, so that the beneficiaries or ‘appropriators’ can use these essential goods in a lasting way, also preserving them for future generations, they must set going self-organization without an external authority. This self-government can also be very complex, with distinction of roles (providers and producers), with various types of rules, which determine who is to take decisions in the different sectors, what actions are permitted or imposed, what procedures must be followed, what information is necessary, what rewards must be assigned and what sanctions inflicted (Ostrom 1 9 9 0 , 5 1 ). There will also have to be secondlevel rules that establish how the first-level ones can be changed. All this has to belong to common knowledge shared among all the participants, prefiguring a real form of rule of law. This means that the language of rights and that of rule of law are necessary for the governance of nature and for distributive justice, on condition, however, that they are worked out in the light of the principle of solidarity in its maximum extension, that is to say also regarding the ecosystem. In this way jurisprudence can avoid becoming responsible for the decline of nature through a profound I. Between Ecology and Environmentalism 19 change of legal paradigms, leading to a new ecological order in human law (Capra and Mattei 2 0 1 5 ). Lastly, it is interesting to notice that this self-organization of interdependence is aimed at allowing free and independent action by the beneficiaries, which consists in use of the available resource units. In this connection, liberty lies in use and not in exclusion of others, that is to say in ownership. “Use is a free act” (Brett 2 0 1 1 , 2 3 ). The beneficiaries appropriate the resource unit and consume it or at any rate use it, but they do not appropriate the system of resources. This means that, at least in these cases, the autonomy and liberty of the subjects considered singly does not precede, but follows, the autonomy of common action and the community arising from the situation of interdependence and supported by the intention to cooperate and by mutual trust. Social bonds are not a constraint on liberty but are the condition making it possible and the guarantee of its equal distribution: libertatem in communi ponere7 . The category of commons therefore stresses a double relationship of interdependence, one between people and goods and one between people through the goods in question. This interdependence has a particular character, in that from the use of these goods duties and responsibilities arise towards other people and natural resources themselves. It is proper to the dignity of the person to attain independence through selfgovernment of situations of interdependence, but an external authority cannot effect this without an intrinsic contradiction. It must only favour it and make it legally possible. The responsibility of the protection of nature falls first of all on those who have direct relations with it, those who use the goods of the earth, those who take an active part in the life of the ecosystem, those who depend on its conservation, and those who enjoy its benefits and its beauty. It is necessary to recognise every person to have the right to intervene in the decisions that concern his or her environment8 . As has already been said, the commons are not only environmental and ecological goods. Ostrom’s researches address, rather, productive natural goods and economic resources (meadows, forests, fisheries, groundwater basins), which are most at risk of extinction. Nevertheless, their results, with the appropriate adjustments, are also fully applicable to protection of nature without productive aims. Besides, Ostrom’s neoinstitutionalism is wittingly connected to the strategy used by biologists for a better theoretical understanding of the biological world (Ostrom 1990, 25). The management of the commons has a highly flexible character and has to take into account the nature of the good and the characteristics of the relationship that the human being has with it. We have also said Tacitus, Annales 1 3 , 2 7 . In the Declaration of the United Nations Conference on the Human Environment (Stockholm, 1 9 7 2 ) a new subject of international law appears: reference is made to humanity rather than to states. Statalism is a by-product of anthropocentrism. 7 8 20 FRANCESCO VIOLA that common goods are a category that is neither homogeneous nor well determined. Their confines are mobile, in continual expansion and sensitive to the circumstances of interdependence, which in turn vary on the basis of different factors, among them signally that of scientific and technological development. The aim here was only to point out a significant example of integral relational ecology that is effectively practicable and thus to show a third way between utopian ecologism and anthropocentric environmentalism. Bibliography Añaños Meza, María Cecilia. 2 0 1 3 . La doctrina de los bienes comunes de Francisco de Vitoria como fundamentación del dominio en el Nuevo Mundo. Persona y Derecho 6 8 /1 : 1 0 3 -1 3 7 . Brett, Annabel S. 2 0 1 1 . Change of State: Nature and the Limits of the City in Early Mod ern Natural Law. Princeton: Princeton University Press. Capek, Milic. 1 9 6 1 . The Philosophical Impact of Contemporary Physics. London and Princeton: D. Van Nostrand Co. Ltd. Capra, Fritjof. 1 9 8 2 . The Turning Point: Science, Society, and The Rising Culture. New York: Simon and Schuster. Capra, Fritjof and Ugo Mattei. 2 0 1 5 . The Ecology of Law. Toward a Legal System in Tune with Nature and Community. Oakland, CA: Berrett-Koehler Publishers. Carr, Bernard J. and Martin J. Rees. 1 9 7 9 . The Anthropic Principle and the Structure of the Physical World. Nature 2 7 8 : 6 0 5 -6 1 2 . Castells, Manuel. 1 9 9 8 . End of Millennium, The Information Age: Economy, Society and Culture, vol. III. Oxford: Blackwell. Clark, John P. 2 0 1 2 . Political Ecology, 5 0 5 -5 1 6 . Encycloped ia of Applied Ethics, nd 2 ed., vol. 3 . San Diego: Academic Press. Commoner, Barry. 1 9 7 1 . The Closing Circle. New York: Alfred A. Knopf. Dryzek. John S. 2 0 0 2 . Deliberative Democracy and Beyond ? Oxford: Oxford University Press. Elster, Jon. Local Justice: How Institutions Allocate Scarce Good s and Necessary Burd ens. New York: Russell Sage Foundation. Mathews, Freya. 1 9 9 8 . Ecological Philosophy. In Routled ge Encycloped ia of Philosophy, ed. Edward Craig, vol. 3 , 1 9 7 -2 0 2 . London and New York: Routledge. Jaspers, Karl. 1 9 4 8 . Philosophie, vol. 3 . Berlin: Springer 1 9 4 8 . Leopold, Aldo. 1 9 6 8 . A Sand y County Almanac and Sketches Here and There (1 9 4 9 ). Oxford: Oxford University Press. Lovelock, James. 1 9 7 9 . Gaia. A New Look at Life on Earth. Oxford: Oxford University Press. Mellon, Christian. 2 0 1 2 . Destinazione universale dei beni. Aggiornamenti sociali 6 3 : 1 6 4 -1 6 8 . Munari, Francesco and Lorenzo Schiano di Pepe. 2 0 1 2 . Tutela transnazionale d ell’ambiente. Bologna: Il Mulino. Naess, Arne. 1 9 7 3 . The Shallow and the Deep. Long-Range Ecology Movement. A Summary. Inquiry 1 6 : 9 5 -1 0 0 . Naess, Arne. 1 9 8 7 . Self-Realization: An Ecological Approach to Being in the World. The Trumpeter 4 : 3 5 -4 2 . I. Between Ecology and Environmentalism 21 Naess, Arne. 1 9 8 9 . Ecology, Community and Lifestyle. Outlines of an Ecosophy. Cambridge: Cambridge University Press. Ostrom, Elinor. 1 9 9 0 . Governing the Commons. The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press. Ostrom, Elinor. 2 0 0 2 . Type of good and collective action, in Common Good s: Reinventing European and International Governance, ed. Adrienne Héritier. Lanham, MD: Rowmann & Littlefield. Rodotà, Stefano. 2 0 1 2 . Il d iritto d i avere d iritti. Roma-Bari: Laterza. Rodotà, Stefano. 2 0 1 3 . Il terribile d iritto. Stud i sulla proprietà privata e i beni comuni, 3 rd ed. Bologna: Il Mulino. Sallares, Robert. 1 9 9 1 . Ecology of the Ancient Greek World . London: Duckworth. Sandel, Michael J. 2 0 1 2 . What Money Can’t Buy: The Moral Limits of Markets, st 1 ed. New York: Farrar, Straus and Giroux. Spaemann, Robert. 1 9 9 4 . Die Aktualität des Naturrechts. Philosophische Essays: 6 0 -7 9 . Stuttgart: Reclam. Stewart, Ngozi. 2 0 1 3 . Strict Anthropocentrism and Environmental Preservation: Strange Bedfellows. Rivista d i Filosofia d el d iritto 2 : 4 4 7 -4 6 2 . Tallacchini, Mariachiara.1 9 9 9 . Ambiente e diritto della scienza incerta. In Ambiente e d iritto, vol. I, ed. Stefano Grassi et al., 5 7 -1 0 0 . Firenze: Olschki. Taylor, Paul W. 1 9 8 6 . Respect for Nature. A Theory of Environmental Ethics. Princeton: Princeton University Press. Viola, Francesco. 1 9 9 5 . Stato e natura. Milano: Anabasi. Viola, Francesco. 1 9 9 7 . Dalla natura ai d iritti. I luoghi d ell’etica contemporanea. Roma-Bari: Laterza. Viola, Francesco. 2 0 1 1 . Come la natura diventa norma. Diritto pubblico 1 7 : 1 4 7 167. Walzer, Michael. 1 9 8 3 . Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books. Weeber, Karl W. 1 9 9 0 . Smog über Attika. Umwelterhalten im Altertum. ZürichMünchen: Artemis-Verlag. Zamagni, Stefano. 2 0 1 5 . Beni comuni ed Economia Civile. In Beni comuni e cooperazione, ed. Lorenzo Sacconi and Stefania Ottone, 5 1 -8 0 . Bologna: Il Mulino. C H A P T E R II DEVELOPMENT OF A THEOLOGY OF THE ENVIRONMENT Paul Haffner SUMMARY: 1 . Introduction. –2 . The patristic era. –3 . The Middle Ages. –3 .1 . Christianity and scientific development. –4 . The ecological challenge and theological responses. –5 . Some principles for an environmental theology. – 5 .1 . Creation and Revelation. –5 .2 . Createdness of the world. –5 .3 . Place of the human person. –5 .4 . Dominion of the human person. –5 .5 . Cultivation and caring. –5 .6 . The Church and the cosmos. –5 .7 . The Holy Eucharist, pledge and first fruits of final things. 1 . Introd uction The Christian theology of creation directly contributes to the solution of the ecological crisis, affirming the fundamental truth that the visible creation is itself a divine gift, the ‘original gift,’ which creates a ‘space’ for personal communion. Effectively, a correct Christian ecological theology is found in the application of theology to creation. The term ‘ecology’ combines the two Greek words, ‘oikos’ (house) and ‘logos’ (word): the physical environment of human existence could be seen as a sort of ‘habitation’ for human life. Considering that the interior life of the Holy Trinity is a life of communion, the divine act of creation is the totally free production of partners who can share in that communion. In this way, it can be said that the divine communion has now found its ‘habitation’ in the created cosmos. For this reason, it is possible to speak of the cosmos as a place of personal communion1 . As Pope Francis stated in his recent encyclical (Laud ato Si) on the environment: “The Father is the ultimate source of everything, the loving and selfcommunicating foundation of all that exists. The Son, his reflection, through whom all things were created, united himself to this earth when he was formed in the womb of Mary. The Spirit, the infinite bond of International Theological Commission, Communion and Steward ship: Human Persons Created in the Image of God (2 3 July, 2 0 0 4 ), 7 4 . 1 24 PAUL HAFFNER love, is intimately present at the very heart of the universe, inspiring and bringing new pathways”2 . At the same time, it is clear that theology will not be able to provide a technical solution to the environmental crisis; nonetheless, theology can help us see our natural environment as God sees it, as the place of personal communion in which human beings, created in the image of God, must seek reciprocal communion and the final perfection of the visible universe3 . The Christian view of creation is of fundamental importance for the Christian foundation of a new responsibility toward the environment. Philosophical realism also has its place in considering the theology of the environment. Realism is an instrument of dialogue between science and faith (Haffner 2001: 12-19). Realism and theological language are necessary for us to develop a correct understanding of the environment. It is important to consider the cosmos from the scientific, philosophical and Pope Francis, Encyclical Letter Laud ato Si, 2 3 8 . The Encyclical Laud ato Si of Pope Francis takes its name from the invocation of Saint Francis of Assisi, “Praise be to you, my Lord” which in the Canticle of the Creatures reminds us that the earth, our common home “is like a sister with whom we share our life and a beautiful mother who opens her arms to embrace us”. (§2 ) Each chapter addresses a particular topic using a specific method, but throughout the entire Encyclical, some principal concepts are continually taken up and enriched: - the intimate relationship between the poor and the fragility of the planet, - the conviction that everything in the world is connected, - the critique of new paradigms and forms of power derived from technology, - the call to seek other ways of understanding the economy and progress, - the value proper to each creature, - the human meaning of ecology, - the need for forthright and honest debate, - the serious responsibility of international and local policy, - the throwaway culture and the proposal of a new lifestyle. (§1 6 ) The dialogical method that Pope Francis proposes for addressing and resolving the environmental problems is followed throughout the Encyclical. It refers to contributions by philosophers and theologians, not only Catholic but also Orthodox (like Patriarch Bartholomew) and Protestant (the French thinker Paul Ricoeur) as well as the Islamic mystic Ali Al-Khawas. The same method occurs in the key of that collegiality that Pope Francis has proposed to the Church since the beginning of his ministry: alongside the references to the teachings of his predecessors and of other Vatican documents (in particular of the Pontifical Council for Justice and Peace), there are many taken from numerous Episcopal Conferences from all continents. In the end we find ourselves before the infinite beauty of God: “Eternal life will be a shared experience of awe, in which each creature, resplendently transfigured, will take its rightful place and have something to give those poor men and women who will have been liberated once and for all”. §2 4 3 ) See also L’Osservatore Romano (weekly English edition), 1 9 June 2015: 9. 3 Cf. Ibid ., 7 8 . 2 II. Development of a Theology of the Environment 25 theological points of view, seeing its relationship with anthropology and thus avoiding the error of cosmocentrism. The realist perspective is also necessary to establish the basis for moral action with respect to the environment. 2 . The patristic era Theological interest in creation, unlike secular concern, did not just begin in the 1 9 6 0 s! In Christian antiquity, the fourth Pope, Clement of Rome (3 7 -1 0 1 ) was the author of the Epistle to the Corinthians which was considered part of the canon of Scripture in Egypt and Syria for several centuries. His emphasis regarding creation is that there is no separation in the law of God: the law which governs the heavens is the same law which governs the oceans and winds and all parts of creation. He provides artistic descriptions of a world in harmony with itself and the Creator. The legacy of Clement is that he demonstrates that teachings about creation have been part of Christianity from its beginning in the first century. “Spring, Summer, Autumn and Winter succeed one another peaceably; the winds fulfil their punctual duties, each from its own quarter, and give no offence; the ever-flowing streams... and even the minutest of living creatures mingle together in peaceful accord. Upon all of these the Great Architect and Lord of the universe has enjoined peace and harmony, for the good of all alike, and pre-eminently for the good of ourselves who have sought refuge in His mercies through our Lord Jesus Christ”4 . An early theologian, St. Irenaeus of Lyons (1 2 9 -2 0 3 ) links creation, the dignity of the human person and the Holy Eucharist in a Christological key: “For the glory of God is a living man; and the life of man consists in beholding God. For if the manifestation of God, which is made by means of the creation, affords life to all living in the earth, much more does that revelation of the Father which comes through the Word, give life to those who seek God… And as we are His members, we are also nourished by means of the creation (and He Himself grants the creation to us, for He causes His sun to rise, and sends rain when He wills). He has acknowledged the cup (which is part of the creation) as His own Blood, from which He bedews our blood; and the bread (also a part of the creation) He has established as His own Body, from which He gives increase to our bodies”5 . One of the most learned scholars of his age, Tertullian (1 6 0 ?-2 3 0 ?) was born in Carthage in North Africa of pagan parents. Eventually he 4 5 Pope Clement I, Letter to the Corinthians 1 :2 1 . St. Irenaeus, Against Heresies, 4 :2 0 .7 and 5 :2 .2 . 26 PAUL HAFFNER journeyed to Rome where he became a legal expert. Disgusted at corruption in the practice of law, and admiring the integrity which he witnessed among the Christians, he converted to Christianity and was soon ordained a priest. He was a prolific and original writer who turned his legal and mental skills to the defence of the Church. His contribution to a theology of creation lies in his emphasis upon how every aspect of creation is renewed and sustained by the power of God, who teaches through His creation: “Nature is school-mistress, the soul the pupil; and whatever one has taught or the other has learned has come from God –the Teacher of the teacher”6 . One particular way in which creation instructs concerns the Resurrection is the following: “Gaze now on these examples of divine power. Day dies into night, and is everywhere entombed in shadows. All things grow dull, voiceless, dumb. Everywhere there is quiet and rest. And so we mourn for the lost light. And yet once more, with all its own beauty, its power, its sun, the same and unharmed, it revives for the universal world, slaying night, which is its death, rending asunder its own sepulchre of darkness”7 . Over the past century, faith in creation has been primarily reduced to the affirmation that everything which exists is due to divine causality. There has been a tendency to see the content of the Christian faith as a response to the word of revelation pronounced throughout the history of salvation. There has always been, however, a conviction that not only the history of salvation, but also creation itself constitutes a context of word and event in which God expresses Himself and turns toward man. Since early times, beginning with Tertullian and Saint Augustine, the great theologians have spoken of a ‘double’ book of Divine Revelation: creation and Holy Scriptures. The Scholastics developed the doctrine of the world of things as imagines et vestigia Dei, and used concepts such as sacrament of nature or of creation (Greshake 1 9 8 8 , 1 2 8 ). The metaphysical traces or imprints, such as unity, beauty, truth and contingency, are found inscribed in creation just as labels are found on the ‘creations’ of ‘designers’. But the full meaning of creation is only intuited through supernatural revelation. As a theoretical foundation for a Christian response to the ecological challenge, therefore, we must turn to a renewed creation theology. One of the most eloquent of the Western Fathers, Marcus Minucius Felix (1 6 7 ?-2 4 9 ), was born in Certa in North Africa and travelled to Rome where he became a lawyer. Not much is known about his early life; he apparently converted to Christianity rather late, in middle age. His discourses on the Christian life follow the Ciceronian style of conversations 6 7 Tertullian, De Testimonio Animae. Tertullian, De ResurrectioneCarnis I. II. Development of a Theology of the Environment 27 between friends, and he uses this approach to address a number of theological issues. He explains how knowledge of the cosmos aids in selfknowledge: “Man ought to know himself, but this knowledge cannot be attained by him unless first he is willing to acknowledge the entire scope of things, including God Himself. And then, from the constitution and furniture of the world itself, every one endowed with reason holds that it was established by God, and is governed and administered by Him”8 . Through this knowledge we can see how God cares for every part of creation: “God does not care only for the universe, He also cares for all of its parts... If on entering a house, you should behold everything refined, well arranged and adorned, you would believe that a master presided over it, and that he was much better and above all those excellent things. So in this house of the world, when you look upon the heaven and the earth, its providence, its ordering, its law, believe that there is a Lord and Parent of the universe far more glorious than the stars themselves, and the parts of the whole world”9 . An eminent theologian of the early Church, Origen was born in Alexandria, and became a brilliant philosopher and biblical exegete by the age of eighteen. Like most early Christians, much of his writing is based upon inspired knowledge and experience of Christ. He often uses creation as a fertile field for insight into the divine nature, and says that everything in creation represents some aspect of the nature of God. “The world in all its diversity and varying conditions is composed not only of rational and diviner natures, but of dumb animals, wild and tame beasts, of birds and of all the things which live in the waters... Seeing there is so great a variety in the world, and so great a diversity among rational beings themselves, what cause ought to be assigned for the existence of the world? But God, by ineffable skill of His wisdom, transforming and restoring all things, recalls those very creatures which differed so much from each other in mental conformation to one agreement of labor and purpose, so that although they are under the influence of different motives, they nevertheless complete the fullness and perfection of one world, and the very variety of minds tends to one end of perfection”1 0 . Bishop of Alexandria and a defender of orthodoxy, St. Athanasius (2 9 7 -3 7 3 ) entered into many dialogues to articulate and preserve an authentic Christian understanding of Church doctrine. He frequently used lessons from nature to exemplify his instruction and his writings are filled with a sense of creation as a primary instructor of Christian life. 8 9 10 Marcus Minucius Felix, The Octavius XVII. Ibid . Origen, De Principiis, Book II:1 -3 . 28 PAUL HAFFNER “By the greatness and the beauty of the creatures proportionately the Maker of them is seen. For just as by looking up to the heaven and seeing its order and the light of the stars, it is possible to infer the Word Who ordered these things, so by beholding the Word of God, one needs must behold also God His Father, proceeding from Whom He is rightly called His Father’s Interpreter and Messenger. And this one may see from our own experience; for if when a word proceeds from men we infer that the mind is its source, and by thinking about the word, see with our reason the mind which it reveals, by far greater evidence and incomparably more, seeing the power of the Word, we receive knowledge also of His good Father, as the Saviour Himself says, ‘He that has seen Me, has seen the Father’”1 1 . As a young man, St. Ephraim the Syrian (3 0 6 –37 3 ) appeared dull and uninspired. After his conversion and baptism, a profound change took place in his attitude and numerous mental and spiritual gifts flowered which allowed him to unravel difficult philosophical and metaphysical complexities. When Ephraim was confronted by theological adversaries, he appealed to their hearts rather than to their minds: he expresses himself in visionary, apocalyptic, symbolic and especially poetical forms. His writings convey a unique blend of mystical experience with perceptions about the natural world. “The keys of doctrine which unlock all of Scripture’s books, have opened up before my eyes the book of creation. The treasure house of the Ark, the crown of the Law, this is a book which above its companions has in its narrative made the Creator perceptible and transmitted his actions; It has envisioned all His craftsmanship, made manifest His works of art”1 2 . Hilary of Poitiers (3 1 5 -3 6 7 ) is the most important Father of Roman Gaul, sometimes called the Athanasius of the West, for his defence of the true faith against the Arians. The heart of his theology is the uniqueness of Christianity among all the religions of the world because it manifests the highest intuitions of God into the physical world and because it teaches us how to know God by following the example and path of Jesus Christ: “Therefore, … by the greatness of His works and the beauty of the things that He has made the Creator of worlds is rightly discerned. The Creator of great things is supreme in greatness, of beautiful things in beauty. Since the work transcends our thoughts, all thought must be transcended by the Maker. Thus heaven and air and earth and seas are fair: fair also the whole universe, as the Greeks agree, who from its beautiful ordering call it kosmos, that is, order. 11 12 St. Athanasius, Against the Heathen 4 5 :1 -2 . St. Ephraim, Hymns of Parad ise, Hymn VI. II. Development of a Theology of the Environment 29 But if our thought can estimate this beauty of the universe by a natural instinct –an instinct such as we see in certain birds and beasts whose voice, though it fall below the level of our understanding, yet has a sense clear to them though they cannot utter it, and in which, since all speech is the expression of some thought, there lies a meaning patent to themselves –must not the Lord of this universal beauty be recognized as Himself most beautiful amid all the beauty that surrounds Him? For though the splendour of His eternal glory overtax our mind’s best powers, it cannot fail to see that He is beautiful”1 3 . One of the Eastern Fathers, St. Cyril of Jerusalem (3 1 5 -3 8 6 ) was the author of a series of lectures on the Christian sacraments and instructions for catechumens. He was once persecuted by the Arians for selling church property to feed the poor. He attended the Council of Constantinople and helped develop the Nicene Creed and the concept of ‘homoousios’ which identifies the unity inherent in Christ’s spiritual-physical nature. His writings about creation are characterized by their emphasis upon physical nature as a window into the Divine Nature. “For what fault have they (the heretics and pagans) to find with the vast harmony of God? They who ought to have been struck with amazement on beholding the vaultings of the heavens: they, who ought to have worshipped Him Who reared the sky as a dome, Who formed the stable substance of heaven... Is there not cause to wonder when one looks at the constitution of the sun? ... See also how the days alternately respond each to the other in due order in summer increasing and in winter decreasing.... For the heretics who have no ears, they all but cry aloud, and by their good order say, that there is none other God save the Creator who has set them their bounds, and laid out the order of the Universe”1 4 . A founder of Eastern communal monastic life, and the first of the Cappadocian Fathers, St. Basil the Great (3 2 9 -3 7 9 ) describes the handiwork of the Creator as ‘everywhere in creation’ and probes deeply into the reasons for creation’s structure. He lays out a Christian cosmology that goes beyond spatial limitations, remains orderly and intentional, and is filled with an intelligible hierarchy beyond human comprehension. This marvellous creation he calls the ‘supreme icon’ of Christian faith which leads to knowledge of the ‘Supreme Artisan’. His lessons from the bees are a beautiful example of his theology of creation: “Listen, Christians, you to whom it is forbidden to ‘recompense evil for evil’ and who are commanded ‘to overcome evil with good’. Take the bee for your model, which constructs its cells without injuring anyone and without interfering with the goods of others. It gathers openly pollen from the flowers, drawing in the basis for the honey scattered over them 13 14 St. Hilary, On the Holy Trinity, Book I, 7 . St. Cyril of Jerusalem, Catechetical Lectures, IX:5 -6 . 30 PAUL HAFFNER like dew, and injects it into the hollow of its cells. At first this honey is liquid; time thickens it and gives it its sweetness. The Book of Proverbs has given the bee the most honourable and the best praise by calling her wise and industrious. How much activity she exerts in gathering this precious nourishment, by which both kings and men of low degree are brought to health! How great is the art and cunning she displays in the construction of the storehouses which are destined to receive the honey? After having spread the pollen like a thin membrane, she distributes it in contiguous compartments which, weak though they are, by their number and by their mass, sustain the whole edifice. Each cell in fact holds to the one next to it, and is separated by one upon another. The bee takes care not to make one vast cavity, for fear it mike break under the weight of the liquid, and allow it to escape. See how the discoveries of geometry are mere by-works to the wise bee!”1 5 . Importantly, St. Basil makes an observation concerning the earth as a common inheritance: “God has poured the rains on a land tilled by avaricious hands; He has given the sun to keep the seeds warm, and to multiply the fruit through His productivity. Things of this kind are from God: the fertile land, moderate winds, abundance of seeds, the work of the oxen, and other things by which a farm is brought into productivity and abundance… But the avaricious one has not remembered our common nature and has not thought of distribution”1 6 . A profound writer, St. Gregory Nazianzen (329-389) has been uniquely honoured as the only Greek father with the special title, ‘the theologian’. He is known as one of the three Cappadocian Fathers, one of the four Eastern doctors of the Church, and one of those especially responsible for the defeat of the Arian heresy. He loved solitude and was easily dismayed by the strife and conflict of the world. Even though he sought a quiet, simple life, circumstances combined with his brilliant oratorical skills continually called him out of seclusion into positions of leadership. He sees all of creation as recapitulated within the microcosm of the human person, not just because both are creatures of God, but because of the manner in which the individual carries the image of God: “This man God set upon the earth as a kind of second world, a microcosm; ... He was king of all upon the earth, but a subject of heaven; earthly and heavenly, transient yet immortal; belonging both to the visible and to the intelligible order...; combining in the same being spirit and flesh.... Thus he is a living creature under God’s Providence here, while in transition to another state and ... in process of deification by reason of his natural tendency toward God”1 7 . 15 16 17 St. Basil, Hexaemeron VIII, “The Creation of Fowl and Water Animals,” 4 . St. Basil, Sermon IV:1 , On Ownership. St. Gregory Nazianzen, Orations 4 5 :8 . II. Development of a Theology of the Environment 31 St. Gregory Nazianzen also had a profound awareness of the place of the animals within God’s creation and how they reflected their Maker in some ways: “Who among men knows all the names of the wild beasts? Or who can accurately discern the physiology of each? But if of the wild beasts we know not even their names, how shall we comprehend the Maker of them? God’s command was but one which said, ‘Let the earth bring forth wild beasts, and cattle, and creeping things, after their kinds’ (Gen 1 :2 4 ), and from one earth and from one command have sprung diverse natures, the gentle sheep and the carnivorous lion, and the various instincts of irrational animals, bearing resemblance to the various characters within men; the fox to manifest the craft that is in men, and the snake the venomous treachery of friends, and the neighing horse the wantonness of young men, and the laborious ant to arouse the sluggish and the dull: for when a man passes his youth in idleness, then he is instructed by the irrational animals, being reproved by the divine Scripture saying, ‘Go to the ant, you sluggard, see and emulate her ways, and become wiser than she’ (Pro 6 :6 ). For when you see her treasuring up her food, imitate her and treasure up for yourself fruits of good works for the world to come... Is not the Artificer worthy the rather to be glorified? For what? If you know not the nature of all things, do the things which have been made then become useless? Can you know the efficacy of all herbs? Or can you learn the benefits which derive from every animal? Even from venomous adders have come antidotes for the preservation of men. But you will say to me, ‘the poisonous snake is terrible.’ Fear you the Lord and it will not be able to hurt you. ‘A scorpion stings.’ Fear the Lord and it shall not sting you. ‘A lion is blood-thirsty.’ Fear the Lord, and he shall lie down beside you, as by Daniel. But truly wonderful also is the action of the animals: how some, as the scorpion, have the sharpness of a sting; and others have power in their teeth; and others do battle with their claws; while the basilisk’s power is his gaze. So then from this varied workmanship, understand the Creator’s power”1 8 . A brother of St. Basil, a monk and eventually a bishop, St. Gregory of Nyssa (3 3 0 –39 5 ) served in the remote and obscure diocese of Nyssa near the Armenian border. There he composed inspired works on the ascetical life and the true Church of Christ. He describes human purpose as one of consecrating, even as transfiguring, the creation into its full cosmological potential. Gregory, an ardent student of Origen, is the first person to use the term, ‘the eternal now’, to describe our experience of God creating the cosmos with the human at the centre. He ardently affirms the spiritual value of nature and all things of this earth even though they reside in a subordinate position to the kingdom of God: 18 St. Gregory Nazianzen, Catechetical Lectures, IX:1 3 -1 4 . 32 PAUL HAFFNER “Man was brought into the world last after the creation, not being rejected to the last as worthless, but as one whom is called to be king over his subjects at his very birth.... The Maker of All gives him as foundations the instincts of a two-fold organization, blending the Divine with the earthly, that by means of both he may be naturally and properly (to enjoy both) God by means of his more divine nature, and the good things of earth by the sense that is akin to them.... He has a rank assigned to him before his genesis and possesses rule over the things that are before his coming into being”1 9 . St. Ambrose (3 4 0 -3 9 7 ) is one of the four great fathers of the West and the teacher of Augustine. He took the Gospel literally and one of his first acts was to divest himself and the entire diocese of Milan of all extraneous possessions and to give them to the poor. He emphasized that creation and its resources were for all people: “Although you may lack money, you are not therefore devoid of grace. Although your house is not large, your possessions are not limited. For the sky is open and the expanse of the world is free. The elements have been granted to all for their common use. Rich and poor alike enjoy the splendid ornaments of the universe”2 0 . One of the great Latin Fathers, St. Augustine (3 5 4 -4 3 0 ) was a convert from Manichaeism who became Bishop of North Africa. His writings depict the cosmos afire with a radiant beauty which everywhere portrays the fecund qualities of God: “Every creature has a special beauty proper to its nature, and when a man ponders the matter well, these creatures are a cause of intense admiration and enthusiastic praise of their all-powerful Maker. For He has wrought them all in His wisdom ... He creates them tiny in body, keen in sense, and full of life, so that we may feel a deeper wonder at the agility of the mosquito on the wing than at the size of a beast of burden on the hoof, and may admire more intensely the works of the smallest ants than the burdens of the camels”2 1 . St. Nilus of Ankyra (3 6 5 ?-4 3 0 ) was a desert-dwelling monastic abbot and saint who was born near Constantinople and who wrote lucidly on the ascetical life. His contribution to modern ecological understanding lies in his ability to articulate the intricacies of the spiritual-mental struggle which brings the soul to know the fullness of creation as an interior spiritual experience as well as an exterior intellectual understanding. This knowledge is important today as it forms the basis for addressing overconsumption and the consumer mentality: “We should remain within the limits imposed by our basic needs and strive with all our power not to exceed them. For once we are carried a 19 20 21 St. Gregory of Nyssa, On the Making of Man, II-IV. St. Ambrose, The Six Days of Creation, III. St. Augustine, The Literal Meaning of Genesis, Book III, Ch. 1 4 . II. Development of a Theology of the Environment 33 little beyond these limits in our desire for the pleasures of life, there is then no criterion by which to check our onward movement, since no bounds can be set to that which exceeds the necessary ... Once a man has passed beyond the limits of his natural needs, as he grows more materialistic, he wants to put jam on his bread; and to water he adds a modicum of wine required for his health, and then the most expensive vintages. He does not rest content with essential clothing”2 2 . One of the four great Western Fathers, Saint Jerome is especially known for translating the Bible into Latin, which we know today as the Vulgate translation. Jerome chronicled the stories of the monks of the Egyptian desert and graphically related the amazing levels of spiritual development to which they attained. His ecological importance is primarily as a chronicler of fourth and early fifth century Christian experience and suppositions about the wilderness and animals. “We admire the Creator, not only as the framer of heaven and earth, of sun and ocean, of elephants, camels, horses, oxen, leopards, bears, and lions, but also as the maker of tiny creatures. Ants, gnats, flies, worms and the like –things whose shapes we know better than their names. And as in all creation we reverence His skill, so the mind that is given to Christ is equally earnest in small things as in great, knowing that an account must be given even for an idle word”2 3 . Pope St. Gregory the Great (5 4 0 -6 0 4 ) was born in Rome of noble and wealthy parents. He is known first for his holiness and insight, and then for his masterful rebuilding of the Western Church from the rubble of barbarian invasions which completed the fall of the Roman Empire in the West. His writings portray creation as everywhere filled with the glorious presence of Christ who made all things translucent and transparent to the illumined mind: “God is within all, over all, under all, is both above with His power and beneath with His support, exterior in respect to magnitude and interior in respect to subtlety, extending from the heights to the depths, encompassing the outside and penetrating the inside; but He is not in one part above, in another beneath, nor in one part exterior and in another interior. Rather, one and the same wholly and everywhere, He supports in presiding and presides in supporting, penetrates in encompassing and encompasses in penetrating”2 4 . One of the greatest fathers of the Church, St. Maximus the Confessor (580-662) represents the summit and synthesis of early Christianity thought on creation. Every created thing, from stone to seagull to the stars of heaven is an expression of the creative thought and will of the Triune God. Creation is at once, a word, or many words in a ‘book’ of God, a gift 22 23 24 St. Nilus of Ankyra, Ascetic Discourses. St. Jerome, Letter 6 0 to Heliod orus, 1 2 . See also Mt 1 2 :3 6 . Pope St. Gregory the Great, Moral Teachings from Job 2 :1 2 . 34 PAUL HAFFNER of God, a symbol of God, and a song of God. Thus for St. Maximus the universe is a vast ‘cosmic liturgy’, composed of word, gift, song and symbol in which heaven and earth are joined in a sacrifice of praise, thanksgiving and worship. Human nature, created in the image and likeness of God, is intended by God to be both microcosm and mediator of, in and through this cosmic liturgy. This means, according to Maximus, that human salvation and the transfiguration of the cosmos are inextricably linked. Just as all things are recapitulated in human nature as microcosm, so too the human being is meant to bear the responsibility of mediator of creation, that is, to be the one in whom all things created are lifted up to God. “The Church is one and the same in and throughout each section. The wise thus glimpse the universe of things brought into existence by God’s creation, divided between the spiritual world, containing incorporeal intelligent substances, and the corporeal world, the object of sense (so marvellously woven together from many natures and kinds of things) as if they were all another church, not built by hands, but suggested by the ones we build; its sanctuary in the world above, allotted to the powers above, its nave the world below, assigned to those whose lot it is to live in the senses… The holy Church of God is an image of the sensible world by itself; the sanctuary reminds one of the sky, the dignity of the nave reflects the earth. Likewise the world can be thought of as a church: the sky seems like a sanctuary, and the cultivation of the land can make it resemble a temple”25 . At the close of the patristic era, St. John Damascene (6 7 5 -7 4 9 ) lived among the early Islamic people of Damascus in what is modern Syria. He is distinguished particularly by his voluminous work, The Exposition of the True Orthod ox Faith, which lays out the parameters for a comprehensive Christian theology. He stressed the importance of a nonpantheistic approach to creation: “I do not worship matter. I worship the Creator of matter who became matter for my sake, who willed to take His abode in matter, who worked out my salvation through matter. Never will I cease honouring the matter which wrought my salvation! I honour it, but not as God... Because of this I salute all remaining matter with reverence, because God has filled it with his grace and power. Through it my salvation has come to me”2 6 . He indicated how the human person is a microcosm of the community of life: “Man, it is to be noted, has community with things inanimate and participates in the life of the unreasoning creatures, and shares in the mental processes of those endowed with reason. For the bond of union between man and inanimate things is the body and its composition out of the four elements: and the bond between man and plants consists, in addition to these things, of their powers of nourishment and growth and 25 26 St. Maximus the Confessor, The Mystagogia. St. John Damascene, On the Divine Images 1 :1 6 . II. Development of a Theology of the Environment 35 seeding, that is, generation: and finally, over and above these links, man is connected with unreasoning animals by appetite, that is anger and desire, and sense and impulsive movement... plus the five physical senses... Lastly, man’s reason unites him to incorporeal and intelligent natures, for he applies his reason and mind and judgement to everything and pursues after virtues and eagerly follows after piety, which is the crown of the virtues. And so man is a microcosm”2 7 . 3 . The Mid d le Ages Especially in the monastic tradition there is to be found an expression of the Church’s care towards creation. Two particular examples of the Christian attitude toward nature can be seen in Saint Benedict and Saint Francis. The basis for a truly constructive ecological spirit has thus been present for centuries in the Christian tradition. Saint Benedict represents the more active and practical aspect. The monks at Monte Cassino followed the ‘ora et labora’rule, and learned to cultivate the land for intensive production without degrading the environment. In a community context, the good ideas of conservation and preservation were put into effect. Saint Benedict’s approach was an example of an application of the Gospel passage: “Seek first the kingdom of God and his righteousness, and all these things will be given you besides” (Mt 6 :3 3 ). Saint Francis, on the other hand, represents the aspect of praise and contemplation, exemplified by his Canticle of the Creatures: “All praise be yours, my Lord, through our Sister Mother Earth, who sustains us and governs us, and produces various fruits with colored flowers and herbs”. Saint Francis felt a natural –not pantheistic or intellectualistic – brotherhood with every creature and every environmental event (for example: wolves, fire, water and even death). This type of perception does not seem to contrast the work of the Benedictines at all. Saint Francis, in fact, recommends not cutting down entire trees, but rather some of the branches in order to allow the tree to live and man to use its wood. As stated earlier, in 1 9 7 9 Saint Francis was declared the patron saint of the environment by Pope John Paul II2 8 . St. John Damascene, Exposition of the Orthod ox Faith, Book II, 1 2 . See Pope St. John Paul II, Apostolic Letter Inter sanctos (2 9 November, 1 9 7 9 ) in AAS 7 1 (1 9 7 9 ), 1 5 0 9 -1 5 1 0 . This declaration recognizes that St. Francis must be “rightly counted among the saints and illustrious men who had a unique veneration for nature, considered a magnificent gift from God to humanity … In fact, he had a unique perception of all of the Creator’s works, and nearly superbly inspired he composed the beautiful Canticle of the Creatures, through which –particularly through brother sun, sister moon and the stars –he gave due praise, honor, glory and every blessing to the highest, omnipotent and good Lord”. (My translation). 27 28 36 PAUL HAFFNER A Syrian monk who writes primarily for other monks. St. Peter of Damascus (1 0 2 7 ?-1 1 0 7 ?) lived in a small skete (a monastic village) in the Syrian desert. His writings depict a cosmos infused with the presence of God and he finds everywhere the love of God dwelling in all things. St. Peter of Damascus is important for ecological awareness because he reflects a cosmological vision in which God’s providence embraces the whole of creation. This becomes accessible to us, he writes, as we are moulded into the likeness of God through the acquisition of the virtues and contemplation. From St. Peter of Damascus we learn that the world is a manifestation of divinity; that through creation we can discern the Word which sustains every creature; that through examination of both the little things and the large, we find the continuing work of our Lord Jesus Christ while still in this world. In accordance with the monastic style of his time, his writing is deliberately a systematic which requires the reader to restore the original internal harmony to arrive at his or her own view of their place in spiritual formation: “God’s providence embraces the whole universe... By contemplating the beauty and use of each thing, (one who has acquired the habit of detachment) is filled with love for the Creator. He surveys all visible things: the sky, the sun, moon, stars and clouds, rain, snow and hail... thunder, lightening, the winds and breezes and the way they change, the seasons, the years...; the four-legged animals, the wild beasts and animals and reptiles, all the birds, the springs and rivers, the many varieties of plants and herbs, both wild and cultivated. He sees in all things the order, the equilibrium, the proportion, the beauty, the rhythm, the union, the harmony, the usefulness, the variety, the motion, the colours, the shapes, the reversion of things to their source, permanence in the midst of corruption. Contemplating thus all created realities, he is filled with wonder”2 9 . An Augustinian monk who served as master of the Abbey School of Paris, Hugh of St. Victor (1 0 9 6 -1 1 4 1 ) is known for restoring the mystical tradition of an earlier Christianity and for inspiring concern for spiritual transformation. His spiritual discipline caused him to shine like a beacon of spiritual renewal in the twelfth century. For Hugh knowledge of the world introduces contemplation of the Creator. The most prominent themes about care of creation in Hugh of St. Victor’s writings are the wisdom and rationality of the world, the ability to know God through contemplation of his works, and the importance of using the senses prayerfully so that they may apprehend the beauty of God everywhere in creation: “The whole sensible world is like a book written by the finger of God, that is, created by the divine power, and individual creatures are St. Peter of Damascus as found in Philokalia, Vol. III, The Sixth Stage of Contemplation: 1 3 6 -1 3 7 . Trans. Philip Sherrard. London: Faber and Faber, 1 9 9 5 . 29 II. Development of a Theology of the Environment 37 like certain characters invented not by human judgement, but by divine choice to manifest and to signify in some way the invisible wisdom of God. But just as when unlettered people see an open book, they see the characters, but do not know the letters, so foolish people and natural human beings, who do not perceive the things of God, see the external appearances in these visible creatures, but do not understand their inner meaning. But those who are spiritual persons can judge all things insofar as they consider the beauty of the work externally, but grasp within them how much the wisdom of the Creator is to be admired”3 0 . A visionary and prophet, St. Hildegard of Bingen (1 0 9 8 –11 7 9 ) was inspired by the audacity of the tasks given to her as she listened to the Word of God. She served as a Benedictine nun and abbess of a medieval German convent. She combined Christian theology with ethics and cosmology; produced an encyclopedia of medicine and natural science; authored liturgical hymns; and wrote the first Christian morality play. Beginning at the age of sixty, she undertook four lengthy missionary tours of Europe. Her contemporaries called her ‘the Sibyl of the Rhine’, and she ministered as an oracle of inspired counsel on topics from marital troubles to health problems and the ultimate destiny of souls. Today herbalists have rediscovered the benefits of her medical prescriptions and have applied her remedies in homeopathy. She saw things which were invisible to those around her; she foretold the future; and those who knew her said there was a continual ‘luminosity’ around her head which she called ‘the reflection of the living light’. She wrote eloquently about God’s blessings through the world and proclaimed that sin and corruption destroy the harmony of the cosmos and besmirch the grandeur of God’s gift of creation. For her, nature evokes joy, wonder, praise, thanksgiving, and especially love. Hildegard’s legacy to the modern world is that only a transformed heart, following Christ wherever He leads and willing to die to all idols, brings healing to the earth. “Do not denigrate anything God has created. All creation is simple, plain and good. And God is present throughout his creation. Why do you ever consider things beneath your notice? God’s justice is to be found in every detail of what he has made. The human race alone is capable of injustice. Human beings alone are capable of disobeying God’s laws, because they try to be wiser than God … The rest of Creation cries out against the evil and perversity of the human species. Other creatures fulfil the commandments of God; they honour his laws. And other creatures do not grumble and complain about those laws. But human beings rebel against those laws, defying them in word and action. And in doing so they inflict terrible cruelty on the rest of God’s creation”3 1 . Hugh of St. Victor, The Three Days of Invisible Light: 4 .. Trans. Roland Teske, SJ. Milwaukee: Marquette University Press, 1 9 9 6 . 31 St. Hildegard of Bingen, Scivias 1 .2 .2 9 -3 0 . 30 38 PAUL HAFFNER There is a limited meaning in which creation carries some form of God’s Self-revelation. Saint Anselm of Canterbury wrote: “Uno eod emqueVerbo d icit seipsum et quaecumquefecit” (“In the one and the same Word, God says Himself and what He has done”)3 2 . Seen in this way, created things are ‘verba in Verbo et d e Verbo’: ‘words in the Divine Word originated by the Divine Word’. Creation is that which is found in it; it is expression, symbol and sacrament of God. Consequently, there are not merely obscure allusions to God in creation, but in it He reveals Himself, as Saint Paul affirmed in his letter to the Romans (Rm 1 :1 9 ). Or in the words of Saint Bonaventure: “Everything that God does, He does in order to manifest Himself”3 3 . In a sense, creation is also God’s gift of Himself. God is He Who, according to Sacred Scripture, gives life to all, provides food and drink, and brings rain and sunshine upon the just and the unjust to show His love, His concern and His donation to humanity. There are various degrees of intensity in this gift. In the human realm, a handshake is less intense than the expression of spousal love, which in turn is perhaps a less intense level than sacrificing one’s life for another human being. The intensity of God’s manifestation is found in a certain measure in creation, and in a much different measure in salvation history, which culminates in the sacrificial offering of the Son of God upon the altar of the Cross. Creation itself, furthermore, is already a first modulation of the Word of God. In a certain analogous and limited sense, creation is a ‘sacrament,’ a sign and efficacious means, of God’s Self-revelation and His gift of Himself. In creation, God manifests Himself in a mediated way. It is necessary to make these clear distinctions in order to avoid ontologism and other steps toward pantheism. A distinction must be made between natural and supernatural revelation. Theodoret, Bishop of Cyrrhus in Syria, highlighted the enormous difference between God’s revelation in nature and in His Son made flesh: “The incarnation of our Savior represents the greatest fulfilment of divine solicitude toward man. In fact, neither heaven nor earth nor sea nor sky nor sun nor moon nor stars nor the entire visible and invisible universe, created by His word alone or rather brought to light by His word in accordance with His will, indicate His incommensurable goodness so much as the fact that the Only Begotten Son, He Who subsists in God’s nature, reflection of His glory, imprint of His substance, Who was in the beginning, was with God and was God, through Whom all things were made, after having taken on Himself the nature of a servant, appeared in human form, by his human form was considered man, was seen on earth, interacted with men, bore the burden of our weaknesses and took upon Himself our illnesses”3 4 . 32 33 34 Saint Anselm of Canterbury, Monologion, 3 3 . Saint Bonaventure, In II sententiarum 1 6 , 1 , 1 . Theodoret of Cyrrhus, Discourses on Divine Provid ence, 1 0 . II. Development of a Theology of the Environment 39 The declaration of the 1 9 8 0 German Bishops’ Conference on this topic states the following: “If we consider the world a creation of God, it appears much differently to us and becomes new. It is the gift of a God who loves … Accepting the reception of the world as a gift: this also gives us a new love for the world and for living things. They become precious to us, a gift to give to others, a sign and symbol of the goodness of God”. 3 .1 Christianity and scientific d evelopment Modern and experimental science was made possible by the Christian philosophical atmosphere of the High Middle Ages. Modern science is the genuine product of a Judeo-Christian view of the world, which has its origin of inspiration in the Bible and in the doctrine of the Logos3 5 . This flows from the fact that the Judeo-Christian vision of creation is diametrically opposed to the series of eternal returns that are found in ancient non-Christian and pre-Christian belief systems. The characteristic of pagan cosmogonies is a presentation of the inescapable birth-deathrebirth cycle, with no beginning or end and an essential lack of any meaning. In such a cyclic and eternal view of the universe, science could not make progress (Jaki 1 9 8 6 ). This is because science needs to be able to investigate the beginning of the processes of the universe. An adequate notion of time is crucial for developing differential calculus and integrals. Precisely the progressive, linear worldview deriving from Christian doctrine led to the growth of science, as well as other aspects of the human journey. The Christian faith, then, despite being primarily connected with the idea of eternal life, has a true effect on the world in which it is found. Christianity led to both material and spiritual effects, since “The Gospel has truly been a leaven of liberty and progress in human history, even in the temporal sphere, and always proves itself a leaven of brotherhood, of unity and of peace”3 6 . The Christian view of creation rises above the most ancient religious systems in which the cosmos was considered eternal and cyclic with respect to time. In China, despite their differences, the Taoist, Confucian and Buddhist approaches have in common the idea of an eternal cosmos and a certain cyclic repetition throughout time. Similarly, the Hindu religions in India held that the cosmos was eternal and regulated by inexorable cycles. In the pre-Columbian Americas, there were also elements of this sort. The gods of the Aztecs were personifications of various periodically 35 2000. 36 Cf. P. Poupard, Ad d ress for the presentation of the Jubilee of Scientists, 2 8 February, Vatican II, Ad gentesd ivinitus, 8 . 40 PAUL HAFFNER changeable forces, and of natural phenomena. The cosmos was cyclic; the concepts of space, time and causality were missing. The Incas were prisoners of a cyclic idea of time. The Mayans also had a cyclic notion of time in which there was no beginning. For the ancient Egyptians, the universe was like an enormous animal that gave origin to an organismal, rhythmic and animistic cosmogony. The Babylonians, Sumerians and Assyrians were closed within a cyclic and animistic understanding of the world, distinctly different from the Old Testament understanding. In the Aristotelian, Stoic and Epicurean cosmologies of ancient Greece, the universe was cyclic; matter and its processes were eternal. Despite their enormous advances in physics, medicine and mathematics, science was not fully birthed by the Muslim heirs of Aristotle. These ‘stillbirths’ of science can be connected to a primitive understanding of the cosmos as having eternal cycles in a necessary universe. The psychological climate of these ancient cultures often implied a lack of hope or merely settling for what they knew, and in both cases there was a failure to believe in the existence of God the Creator, and an inability to produce a self-sufficient scientific undertaking (Jaki 1 9 9 0 , 4 3 -4 5 ). In the neo-pagan philosophies of the Renaissance, German idealism and the New Age Movement, as in the attempts of modern scientists to exclude God from His creation, there is a return to a cyclic and eternal cosmos (Jaki 1 9 8 6 ). It is important, at this point, to emphasize that science grew within and was born out of the Middle Ages, in relation to a Christian view of the cosmos. Science and technology developed from philosophical roots that emerged from the Christian understanding of a rational and contingent cosmos, created ex nihilo and cum tempore by God the Creator. The ‘womb’ of science was the Middle Ages, during which theology, science and philosophy worked together harmoniously. After the medieval period, however, this relationship between science and theology was fractured by Descartes, Kant and the Enlightenment (Haffner 2 0 0 1 : 1 1 7 1 2 4 ). Sciences little by little lost their reference to God the Creator. The moral criteria for judging the technological applications of science were no longer connatural to science and to technology. For this reason, technology developed without the moral instruments to identify the grave consequences of abusing nature. This situation was verified in practice during the industrial revolution: “The God and ethics of ‘practical reason’ were bound to become a matter of self–centered practicality in full accord with the self– centeredness imposed by Kant on thinking. This subjective ethical practicality found its supreme sanction in the image which evolutionism paints of man. In that image ethics is reduced to man’s practical responses in his struggle for survival” (Jaki 1 9 7 8 : 2 9 8 ). II. Development of a Theology of the Environment 41 4 . The ecological challenge and theological responses There are several authors, often in the secular realm, who blame Christianity for the ecological problems in a society dominated by technology. They affirm that the roots of our difficulties are profoundly religious, citing the idea that the will of God is for man to make use of nature to his own advantage, according to the words of the Book of Genesis: “Fill the earth and subdue it” (Gn 1 :2 8 ). White was the first to sustain this thesis (White1 9 6 7 : 1 2 0 3 -1 2 0 7 ). According to White, Christianity inherited the refutation of cyclical time from Judaism (this is partially true), and substituted cyclic time with a linear concept of history, leading to a consequent rise in the hope of ever-growing and limitless progress; a rigorously anthropocentric worldview must be added to all of this, derived from considering homo sapiens to be the imago Dei, which, according to White, makes people free to use and abuse a world whose dominion they can flaunt in the name of God. Modern science emerged from this context as an extrapolation of the Christian theological understanding of nature, effectuating the unconditional surrender of the earth to the will of man. Another negative element of Christianity, according to White and other more extreme authors, is the radical dualism between a being (man) who no longer considers himself an integral part of nature, and nature itself, whose mysterious vengeance does not delay in responding. This seems to be an echo of the Marxist dialectic. For White, science and technology are so strongly saturated by a so-called ‘Christian arrogance’ that they are undependable for mitigating the crisis; it must be the Christian faith itself, conveniently recycled (for example, according to the model of Eastern Christianity, much more supernatural and respectful of nature than the Western branch), to initiate a renewed mentality conversion. While White demands a mentality change from within Christianity, other more extreme secularist exponents reject the Christian perspective itself. It must be stated that the ideas rejected by White and others are not Christian at all. In particular, the notion of continual and limitless progress is characteristic of Hegel or Marx, and of neo-Darwinism, which, among other things, do not account for the reality of original sin3 7 . Lynn White’s thesis was re-proposed much more unilaterally by Améry (Améry1 9 7 2 ), and a partially modified version of it was sustained by Passmore, who identified the true root of the present evils in the union of Greek culture with Christianity (Passmore 1 9 7 4 ). Later, things shifted toward Deep Ecology, so named because it not only seeks to overcome superficial ecological anthropocentrism, but also seeks to uproot the theory of intrinsic human value which, in the end, constantly reverberates Cf. P. Haffner, Toward s a Theology of the Environment, Leominster 2 0 0 8 , pp. 2 1 6 -2 2 0 . 37 42 PAUL HAFFNER within man as a subject with ethical responsibility and entirely prescinds from his existential attitude toward certain realities. These views are very far from Christianity and, in fact, from any human truth, and readily lead to pantheism, in which individuality is lost in the haze of totality. They readily harmonize with some Eastern religions, especially Hinduism, Buddhism and Taoism, and encounter the favour of those who, like Capra, embrace New Age spiritual attitudes (Capra 1 9 8 2 ). Such types of eco-ideology are often mixed together with leftist politics and extreme feminism (Cheney 1 9 8 7 , 1 1 5 -1 4 6 ; Diamond and Orenstein, 1 9 9 0 ; Whelan 1 9 9 6 , 1 2 8 ). In this approach, they find the possibility of definitively overcoming the framework of the ecological question provided by the anthropocentric tradition, typically inspired by a patriarchal –and therefore authoritarian and violent –logic, incapable of guiding humanity toward a harmonious and balanced relationship with natural realities. Ecology has thus been transformed from a particular science into a general science of bio-cultural existence, and thence into an ideology which we can call ecologism. (Jaki 1 9 9 4 : 2 7 1 -2 9 3 ). Jaki points out how the shift “from physics to physicalism and from science to scientism may provide an informative parallel with the shift from ecology to ecologism” (Jaki, 2 7 6 ). Ecologies that seemingly begin with the program of saving man’s environment quickly run their logic to the point where the environment takes absolute priority over man. This ideology easily takes root in Darwinist circles where man is seen to be the product of purely natural forces (Jaki, 2 7 6 ). Part and parcel of this pernicious view is the erroneous claim that man is simply one of a very large number of species, all equally valuable and enjoying the same rights (Jaki 1 9 9 4 , 2 7 7 ). One ideologue and philosopher who helped bridge fascism and environmentalism was Martin Heidegger, who preached ‘authentic Being’ and harshly criticized modern technology, and is therefore often celebrated as a precursor of ecological thinking. On the basis of his critique of technology and rejection of humanism, contemporary deep ecologists have elevated Heidegger to their pantheon of eco-heroes. Heidegger’s critique of anthropocentric humanism, his call for humanity to learn to let things be, his notion that humanity is involved in a ‘play’ or ‘dance’ with earth, sky, and gods, his meditation on the possibility of an authentic mode of ‘dwelling’ on the earth, his complaint that industrial technology is laying waste to the earth, his emphasis on the importance of local place and ‘homeland’, his claim that humanity should guard and preserve things, instead of dominating them — all these aspects of Heidegger’s thought help to support the claim that he is a major deep ecological theorist (Zimmerman 1 9 9 0 : 2 4 2 -2 4 3 ). As for the philosopher of Being, he was an active member of the Nazi party and for a time enthusiastically, even adoringly supported the Führer. His mystical panegyrics to Heimat (homeland) were complemented by a deep anti-Semitism, and his metaphysically phrased broadsides against technology and modernity converged neatly with populist demagogy. II. Development of a Theology of the Environment 43 Ernst Lehmann was a professor of botany who characterized National Socialism as ‘politically applied biology’: “We recognize that separating humanity from nature, from the whole of life, leads to humankind’s own destruction and to the death of nations. Only through a re-integration of humanity into the whole of nature can our people be made stronger. That is the fundamental point of the biological tasks of our age. Humankind alone is no longer the focus of thought, but rather life as a whole... This striving toward connectedness with the totality of life, with nature itself, a nature into which we are born, this is the deepest meaning and the true essence of National Socialist thought” (Lehmann 1 9 3 4 : 1 0 -1 1 ). This unmediated adaptation of biological concepts to social phenomena served to justify not only the totalitarian social order of the Third Reich but also the expansionist politics of Lebensraum (the plan of conquering ‘living space’ in Eastern Europe for the German people). It also provided the link between environmental purity and racial purity. No aspect of the Nazi project can be properly understood without examining its implication in the Holocaust. Here, too, ecological arguments played a crucially malevolent role. Not only did the ‘green wing’ refurbish the sanguine anti-Semitism of traditional reactionary ecology; it catalysed a whole new outburst of lurid racist fantasies of organic inviolability and political revenge. The confluence of anti-humanist dogma with a fetishization of natural purity provided not merely a rationale but an incentive for the Third Reich’s most heinous crimes. Eco-ideologies are very critical of traditional Western cultures, and in particular of historical Christianity. They expand and stretch the notions of sexism in the domination of men over women, and of racism in the domination of masters over slaves, into speciesism: the domination of the human species (in practice, men) over animals and the earth. Walter Kasper notes that: “In effect, biblical faith in creation constitutes part of the spiritual presuppositions of the modern natural sciences and of the technological development that they have made possible, since it was the biblical distinction between Creator and creature which demythologized and undivinized the world itself, identifying it as God’s creation. Additionally, a rational world is created by a rational God. The environmentalist movement has shifted away from the Judeo-Christian vision. In separating from biblical anthropocentrism, the environmentalist movement sustains not just a nearly mystical unity between man and the world, but also a sort of pantheistic definition of the relationship between God and the world. This vision of some environmentalists offers a new challenge for theology” (Kasper 1988: 134 - my translation). It must also be confirmed, in response to environmentalists, that the awareness of being creatures should lead people to a religious reverence toward God for the whole of creation. The destiny of creation is entrusted to man, insofar as he is the image of God (Gn 1 :2 8 ); he is absolutely not an arrogant and despotic lord: he is just a superintendent and manager, 44 PAUL HAFFNER administrator and steward. The position he has been given does not authorize him to plunder, radically alter or destroy the reality with which he has been entrusted and to which he is connected (Gn 2 :7 ). In fact, it obliges him to promote it, defend it, and lead it to fulfillment; the stewardship entrusted him implicates wisdom, prudence and faithfulness, and excludes egoism, greed and lack of reflection. The passage of Genesis 2 :1 5 (perhaps three centuries prior to Genesis 1 :2 8 ) already spoke about the ‘care for’ the earth, and not just about man’s utilization of it. The same context of Genesis 1 :2 8 indicates very clearly that only God is the Lord; as such, He founded creation on the basis of several natural laws that escape human jurisdiction and which man, like the other creatures, must respect. It is the same faith in creation, making the absolute sovereignty of the Creator known to man, which places limits on human dominion over the earth. When man abuses the position he has received, the consequences are just as much his own debasement as that of his living environment. In most cases, environmentalists do not take into consideration the Christian dogma of original sin, which has secondary effects on man’s intellect and will. We must also keep in mind the Christian teaching on personal sin. There is a notable proposal which suggests that it was the ancient Romans, with their business-oriented mentality, who translated the anthropocentric idea of Greek thought into practice and laid the basis for the attitude of dominion and possession which is still so rooted in Western culture today (Bardulla 1 9 8 8 , 1 1 9 and Hughes 1 9 7 5 ). Still others, such as Max Weber, connect Protestantism with liberal capitalism (Weber 2 0 0 3 ). It is interesting to note the differences between the understandings of the person-nature relationship3 8 in the Catholic tradition and in the Protestantism of the Reformation. In Luther’s opinion, as in much of Protestant theology, the kingdom of God and the kingdom of the world are seen as being in tension, in a certain form of reciprocal contrast or antithesis. This position is connected to Luther’s idea (which later is that of the Jansenists) that human nature is totally corrupted by original sin. There is therefore an opposition between human nature and grace, which has several consequences for the relationship between humankind and the natural environment. On the other hand, when human nature and grace are seen together in synthesis as in the Catholic tradition (particularly evident in the Greek Fathers of the Church and the Thomistic tradition), the relationship between humanity and nature is understood in a more positive way: the general disposition is of cooperation with nature rather than opposition to it. The Catholic tradition puts greater emphasis on the principle of the Incarnation and the principle of sacramentality than the Protestant Here the terms “person” and “nature” are used in their concrete, and not philosophical, meanings. 38 II. Development of a Theology of the Environment 45 tradition. The Protestant tradition (in environmental theology) puts the focus on the idea of service or of a strong sense of responsibility for nature and toward other present and future members of humanity. It also has a tendency toward individualism. This approach is insufficient. A more Christological position is necessary, which comprehends the connection between creation, the Incarnation, the Paschal Mystery and eschatology. The ecological criterion must be based on love for Jesus Christ in nature, and love in Christ for other present and future persons. In its moral impulse, the Catholic position highlights a morality based on ‘being,’ or rather, with an ontological basis. On the other hand, the Protestant view proposes self-sufficient morality, without metaphysical roots. 5 . Some principles for an environmental theology 5 .1 . Creation and Revelation In Wisdom literature and in the Psalms, the origin of creation is recalled in the creative Word of God (cf. for example Ps 3 3 :9 ). The world comes to be as solidly founded on God. People find assurance and support in this. Wisdom exalts the beauty and order of creation as a testament to the greatness of God. The created world must turn into joy and glorification of the Creator (cf. Wis 1 3 :1 -5 ; Sir 4 2 :1 5 -4 3 ; Jb 1 2 :7 -9 ), because in it the goodness and wisdom of God become apparent (cf. Ps 8 ; 1 0 4 ). It is the breath of God, the spirit of wisdom and goodness which fills the earth (Wis 1 :7 ; 8 :1 ): “For you love all things that are and loathe nothing that you have made; for what you hated, you would not have fashioned. And how could a thing remain, unless you willed it; or be preserved, had it not been called forth by you? But you spare all things, because they are yours, O Lord and lover of souls” (Wis 1 1 :2 4 -2 6 ). The love of God for His creatures helps us understand creation as a relational reality3 9 . 5 .2 . Created ness of the world In the passage of Genesis 1 :1 , we find the first words of the Bible: “In the beginning, when God created the heavens and the earth…” In this phrase, ‘create’ (‘b āra’) is a precise theological verb whose subject is almost exclusively God. The word itself cannot be an absolute proof of ex nihilo creation, because there are some exceptions (Jos 1 7 :1 5 -1 8 , Ez 2 3 :4 7 ), but all of Genesis 1 indicates ex nihilo creation. Even reason, on the basis of a logical-semantic analysis of the biblical text (supported by 39 Cf. German Bishops’ Conference, Safeguard ing the future of creation, 1 9 9 8 , 6 6 . 46 PAUL HAFFNER the most recent conclusions of philosophers of science), can affirm this truth. This conflicts with the beliefs of nearby contemporary peoples of the Middle East who followed other, erroneous worldviews. The verb ‘create’ is clarified through the verb ‘speak’ (‘d abar’). The first book of Genesis testifies no less than seven times –once before every individual act of creation –that God spoke, and that in function of this speaking the world became real. This notion of ‘speaking’ implies revelation, and highlights the free and personal nature of God in His act of creation. God takes the initiative. The verb ‘bless’ (‘baruk’) adds something more than goodness to ‘creating’. By blessing, God promises fertility and abundance to the creatures. Blessing remains and persists despite all human errors. God is absolutely free in creating. Therefore, He does not create by necessity. With creative spontaneity, He founds a reality distinct from Himself and He freely provides it with its specificity. The world is contingent in its existence because God was free to create a world or not. The form in which God created the world is not a necessary form, but rather a contingent one insofar as it depends on a single choice (among many possible choices) that God made. Creation, therefore, is distinct from God. If the world is the product of the creative word of God, then it is clearly distinct from God in its very nature. God’s freedom also closes the door to pantheism. The cosmos is good and there is no danger of collapse, which the ancient and pagan understandings based on inherent instability instead believed. The cosmos is unique and it is a whole. God is supremely rational. Therefore, creation reflects a rationale. It cannot be used arbitrarily. There is logic in the natural and revealed laws concerning the use of creation. The discussion on createdness has two important aspects. Firstly, it is an action that occurred once and for all, which is to say creatio ex nihilo and cum tempore. Secondly, it is a beginning that lasts and develops throughout history, in the design of God’s Providence. If we ignore the initial moment, the danger of pantheism becomes reality; if we instead ignore Providence, the danger of deism becomes reality. The cosmos was not only created, but it is also a creature. Many secular environmentalists who believe in only a vague type of Supreme Being, but not in Christianity, fall into pantheism (where nature becomes an object of worship and adoration) or deism. Instead, Providence is the basis for understanding human beings as stewards, who participate in the Paternity of God and in Providence. God transcends His creation, but follows it closely in an immanent way. 5 .3 . Place of the human person We reject Kant’s absolute anthropocentrism in which man is imprisoned in both a subjectivism and an agnosticism with respect to God, the cosmos and the human soul. Extreme anthropocentrism leads II. Development of a Theology of the Environment 47 to cosmocentrism. Man is part of the cosmos; but eliminating the distinction between man and the cosmos leads to cosmocentrism. This is also the danger in R. Dawkins’ materialistic neo-Darwinism (Dawkins 2 0 0 6 , 2 5 3 ), in which man is considered only the carrier of genetic wealth. Let us return instead to the biblical understanding of man’s place and follow Christian Christocentrism. In the Book of Genesis, Chapter 2 , human beings appear as the center around which God creates the world. In the first chapter of Genesis, they appear to be the culmination point toward which the history of creation tends, step by step. In both cases, the human person is always seen in reference to God. In Genesis 1 :2 6 , the creation of man begins with an explicit, divine decision. The expression “Let us make man…” expresses the majesty of God. All other creatures were created through the ‘word’. In Genesis 1 :3 , 6 , 9 , 1 4 , 2 0 , 2 4 , the expression ‘God said’ is found six times. This means that God set Himself as a dynamic force and as the meaning and final end of the world. However, something much greater occurs when the Creator, in order to form man, starts with a new decision (‘quoad nos non quoad Deum’) and, in carrying it out, uses the word ‘bāra’ three times for ‘create’. This is intended to clearly highlight, with as much emphasis as possible, the fact that man’s creation depends in an entirely special way directly on God Himself, and that this work brings the creative act to its apex and true end. The creation of the human person is something special and unique, to be distinguished from the creation of the animals. The fact that the expression ‘created’ is used three times in Genesis 1 :2 7 has various meanings and leads to different interpretations. First of all, it indicates that the human being is the image of the Holy Trinity. Secondly, it shows that God is responsible for the creation of the human being’s body and soul, and indicates the relation and distinction between men and women. In the Book of Genesis 1 :2 6 -2 7 we read: “Then God said: ‘Let us make man in our image, after our likeness. Let them have dominion over the fish of the sea, the birds of the air, and the cattle, and over all the wild animals and all the creatures that crawl on the ground.’ God created man in his image; in the divine image he created him; male and female he created them”. Here we find the basis considering the human being as the image of God. Man is considered a ‘steward’ in the Western Christian perspective, whereas in the Christian East he is conceived of as a ‘priest’. In summary, it can be said that the first chapter of Genesis is at the basis of the Western approach, whereas the second chapter is related to the Eastern approach. As a creature, man is a living being (Gn 2 :7 ), a quality apparently shared by all animals. But human createdness is different in a specific and unique dimension that animals do not have: in addition to having the ‘breath of life’, which is the light of self-consciousness, men and women are ‘images of God’. Being the ‘image of God’ means that men and women not only ‘exist’ but are capable of a relationship with God, if God wishes. On the one hand, then, man is connected to his world (‘out 48 PAUL HAFFNER of the clay of the ground’), and on the other hand he is open (‘image of God’) to relating with God. Being the image of God is the basis for a relationship of intimacy with God. It is important to point out that being the image of God does not only refer to the human soul, but also to the human body4 0 . Human beings in their entirety were created in the image of God. This perspective excludes interpretations which place the imago Dei in one aspect or the other of human nature (for example, in righteousness or in the intellect), or in one of their qualities or functions (for example, sexuality or dominion over the earth). Avoiding both monism and dualism, the Bible presents an understanding of the human being in which his spiritual dimension is seen together with his physical, social and historical dimensions4 1 . Far from encouraging an unbridled and anthropocentric exploitation of the natural environment, the theology behind the imago Dei affirms man’s crucial role in the realization of God’s eternal abiding in the perfect universe. Human beings, by God’s design, are the administrators of this transformation for which all of creation yearns4 2 . In the Book of Genesis 1 :4 , 1 0 , 1 2 , 1 8 , 2 1 , 2 5 , it is affirmed six times that “God saw how good it was”. This goodness is on the ontological order. This goodness must not be reduced to a moral dimension or to a useable dimension understood in a pragmatic sense; it must include the capacity of creatures to reflect the glory and perfection of God. The affirmation of goodness does not concern only spiritual creatures, but also material ones in their various forms. The determination of goodness concerns the act of creation as such. This goodness is articulated in a hierarchical form. Creation is only ‘good’ before the creation of man. Not everything that God made is good in the same way. That which is merely ‘good’ becomes ‘very good’ to the degree in which it attains its greatest fulfillment, made possible through man. In Genesis 1 :3 1 , after God created man and entrusted him the responsibility of the earth, it is declared: “God looked at everything he had made, and he found it very good”. Creation is ‘very Cf. Saint Irenaeus, Ad versusHaereses, Book V, chapter 4 , 1 , where he says that not only the soul but also the body is important. Cf. also International Theological Commission, Communion and Steward ship: Human Persons Created in the Image of God ,2 3 July 2 0 0 4 , 2 7 : ‘This truth has not always received the attention it deserves. Present-day theology is striving to overcome the influence of dualistic anthropologies that locate the imago Dei exclusively with reference to the spiritual aspect of human nature. Partly under the influence first of Platonic and later of Cartesian dualistic anthropologies, Christian theology itself tended to identify the imago Dei in human beings with what is the most specific characteristic of human nature, viz., mind or spirit. The recovery both of elements of biblical anthropology and of aspects of the Thomistic synthesis has contributed to the effort in important ways.’ 41 Cf. International Theological Commission, Communion and Steward ship: Human Persons Created in the Image of God , 2 3 July, 2 0 0 4 , 9 . 40 II. Development of a Theology of the Environment 49 good’ only after God places a central reference point in it: man, through whom it all becomes a meaningful whole with a unitary and comprehensive order. This concept saves us from cosmocentrism. From this argument, it can be deduced that the value of nature does not consist solely in its utility for man. Nature constitutes a value in itself, in reference to the Creator, as a hymn of praise to the Creator. However, the subhuman world attains its fullest meaning only in reference to man. At the same time, man attains his fullest meaning in his relationship with God. The idea of the equality, equivalence and autonomy of all creatures does not accord with the faith of the Church4 3 . There is a hierarchy of participation and solidarity in the cosmos. 5 .4 . Dominion of the human person The reference point for this discussion is Genesis 1 :2 8 : “God blessed them saying: ‘Be fertile and multiply; fill the earth and subdue it. Have dominion over the fish of the sea, the birds of the air, and all the living things that move on the earth.’” The word ‘subdue’ as translated in this context corresponds to the Hebrew expression ‘kābās,’ which means ‘taking possession of a territory’. (Bonora 1 9 8 8 , 1 6 1 )4 4 . With the divine blessing, humanity receives the ability to generate and multiply to the point of filling the earth. This indicates the idea of fecundity at the beginning of the process which leads toward pleroma, or fullness. The other key phrase, ‘have dominion,’ corresponds to the Hebrew ‘rād â’, which means ‘to herd, conduct, guide, govern’ (Bonora 1 9 8 8 , 1 6 1 )4 5 . It is thus more attenuated than the modern understanding of ‘dominion’. The territory and the animals were entrusted to man. But that entrusting occurred through a blessing which was given to man insofar as he was in the image of God. This means that the relationship between man and the territory and the animals must be in conformity with the Providential will of God. It is therefore not an arbitrary relationship, and human beings cannot arbitrarily make use of what has been entrusted to them. As Lohfink proposed: “this blessing does not at all legitimize the destruction of entire families of animals on the various continents, of marine organisms, or of countless avian and insect species, in the name of man’s transformation of the face Ibid ., 7 6 . Cf. Vatican II, Gaud ium et spes, 2 4 where it is affirmed that man ‘is the only creature on earth which God willed for himself.’ 44 The discussion actually refers to the Italian word ‘soggiogare,’ which corresponds to the word ‘subdue’ in the New American Bible translation. 45 Here, the Italian term being discussed is ‘d ominare,’ translated as ‘have dominion’ in the New American Bible. 42 43 50 PAUL HAFFNER of the earth … This blessing means the opposite” (Lohfink 1 9 8 6 , 1 9 2 1 9 3 - my translation). It is important to read the passage of Genesis 1 :2 8 in relation to the passage of Genesis 2 :1 5 . Sacred Scripture must always be read in a simultaneously analytical-comparative and synthetic way. 5 .5 . Cultivation and caring Genesis 2 :1 5 presents this key phrase: “The Lord God then took man and settled him in the garden of Eden, to cultivate and care for it”. The Garden of Eden should not be considered an intangible, magical place, a ‘virgin’ forest not to be entered. It is a world entrusted to man’s care. It is a perfect and complete garden, the reality and symbol of God’s absolute gift and unconditional promise to man. The symbol is bound to reality. It is a part of the cosmos, and in this sense it is a symbol of totality on the basis of the pars propter totum principle46 . God does not seek a collaborator to complete the garden, but rather a recipient to whom He can entrust it as His gift and His promise (Bonora 1988, 162). God’s gift is complete and perfect: “God looked at everything he had made, and he found it very good” (Gn 1 :3 1 ). This perfection is also expressed by the Lord’s rest: “Since on the seventh day God was finished with the work he had been doing, he rested on the seventh day from all the work he had undertaken” (Gn 2 :2 ). The work of cultivating and caring is the grateful experience of a gift, a rejoicing with God in His creation, as Psalm 1 0 4 :3 1 sings: “May the Lord be glad in these works!” The human response is appreciation for the gift of creation. The biblical task of working in and on the created world should be understood in the sense of reproducing ‘divine work’. The Sabbath rest places limits on man’s interaction with the world, an interaction of work by which he can give shape to and modify it. It provides an open space in which man can always newly orient himself in accordance with the fundamental image of God. Therefore, any permission for arbitrary domination of nature –any reckless exploitation or destruction –is excluded by principle. Man’s tasks are instead the regulation of order and the reduction of conflicts, aiming to develop the positive aspects while keeping the destructive forces of nature in check4 7 . Cf. St. Thomas Aquinas, Summa Theologiae, Iª-IIae, q. 2 , a. 8 arg. 2 : “Praeterea, ultimus finis cuiuslibet rei est in suo perfecto, unde pars est propter totum, sicut propter finem. Sed tota universitas creaturarum, quae dicitur maior mundus, comparatur ad hominem, qui in VIII Physic. dicitur minor mundus, sicut perfectum ad imperfectum. Ergo beatitudo hominis consistit in tota universitate creaturarum”. 47 Cf. German Bishops’ Conference, Safeguard ing the future of creation, 1 9 9 8 , 6 8 . 46 II. Development of a Theology of the Environment 51 The two verbs used here for ‘cultivate’ (in Hebrew ‘‘abad ’) and ‘care’ (in Hebrew ‘šamar’) evoke a religious attitude, because ‘‘abad ’ is not only ‘agriculture,’ but also indicates the service of worship through a relationship with God, while ‘šamar’ expresses both God’s loyalty to man and man’s loyalty to God, thus evoking the covenant. The attitude of caring is not constituted simply by the exercise of power, but of recognition and praise. In fact, one cares for something that is valued as a precious and expensive good. Man’s ‘care’ for the world is inseparable from man’s service to God48 . 5 .6 . The Church and the cosmos The relationship between the Church and the cosmos appears primarily in Saint Paul’s letters to the Ephesians and the Colossians. According to Eph 1 :2 2 f, God “put all things beneath his [Jesus Christ’s] feet and gave him as head over all things to the church, which is his body, the fullness of the one who fills all things in every way”. There is a double lordship of Christ, both of which are connected to His majesty. The first is with respect to the universe, ‘all things,’ of which Christ is the Head in the sense of Lord (Eph 4 :1 0 ; Phil 2 :9 -1 1 ). The second instead concerns the Church, of which Christ is the Head as its sustenance and life force in the sense of grace (Eph 1 :2 2 f). It is important to note that, according to the Letter to the Ephesians, the cosmos is never presented as ‘the Body of Christ’. Only the Church is the Body of Christ, and this closes the door to cosmocentrism and the organismic idea. Through the Church, Christ brings to completion the fullness of the world. The Church must bring man and the world to salvation: ‘“Go into the whole world and proclaim the gospel to every creature…”’ (Mk 16:15). In the Letter to the Colossians, the following is read: “He [Christ] is the beginning, the firstborn from the dead, that in all things he himself might be preeminent … For in him all the fullness was pleased to dwell, and through him to reconcile all things for him, making peace by the blood of his cross [through him], whether those on earth or those in heaven” (Col 1 :1 8 ff). 5 .7 . The Holy Eucharist, pled ge and first fruits of final things The reconciliation of the universe occurs through the Sacrifice of Christ on the Cross, which is applied through the Church particularly in the Sacrifice of the Mass. Through the Church, the glorified Lord unites the cosmos to Himself together with redeemed humanity in an ever more profound and efficacious way. The Church is the organ through which 48 Ibid ., 1 6 3 . 52 PAUL HAFFNER the unification of the universe in Christ, provided for in the eternal plan for the world, is actualized through history. The most ancient liturgical systems see all of creation included in the Eucharist of the Church, in the Sacrifice and sacrament of the Mass. The Eucharist is the true source of the reasons for a Christian ecology. Only one who is united with the Eucharist perceives creation as a gift from God made in Christ and in the power of the Holy Spirit; only one united in with Eucharist understands how all of creation, a community of co-creatures, is in relation with Christ, the firstborn of all creatures. Only one united with the Eucharist knows how to expectantly await, d onecveniat (cf. 1 Cor 1 1 :2 6 ), a new heaven and a new earth, when God will be all in all (cf. 1 Cor 1 5 :2 8 ). The cosmic dimension of the Church was already established by Origen. He identified the Church as “the world come to give order (ho kosmostoiukosmou he ecclesia), and precisely because Christ, the first ‘light of the world’, became the order of the Church”4 9 . Christ applies the fruits of redemption to the cosmos through the Church. The Church is the only sacrament of salvation. The Church is the efficacious center of sacredness in the universe. While the act of redemption is complete in itself, its application to the cosmos must be brought to completion. In the East, the cosmos is considered the temple in which humanity carries out its priestly role in a theocentric perspective. In the West, on the other hand, the cosmos is understood as the home in which man is the administrator and caretaker in an anthropocentric perspective. This Western perspective is limited, because the cosmos is not renewed merely through human work. In the Eucharist, everything expresses the faithful waiting ‘in joyful hope for the coming of our Savior, Jesus Christ’5 0 . According to Pope John Paul II, one who is nourished by Christ in the Eucharist does not have to wait for the afterlife in order to receive eternal life: it is already had on earth, as the firstfruits of the future fullness of man in his totality5 1 . In the Eucharist, in fact, we also receive the guarantee of bodily resurrection at the end of the world: “Whoever eats my flesh and drinks my blood has eternal life, and I will raise him on the last day” (Jn 6 :5 4 ). This guarantee of future resurrection derives from the fact that the flesh of the Son of Man, given as food, is His Body in the glorious state of resurrection. Through the Eucharist, the ‘secret’ of the resurrection is assimilated. Therefore, rightly, Saint Ignatius of Antioch defined the Eucharist as the ‘medicine of immortality, and the antidote to prevent us from dying’5 2 . The rightful concerns about the ecological conditions in many parts of the created world find comfort in the perspective of Christian hope, Origen, Commentary on the Gospel of John, Book VI, no. 3 8 in PG 1 4 : 3 0 1 -3 0 2 . Roman Missal, Embolism after Our Father. 51 Pope St. John Paul II, Encyclical Letter Ecclesia d e Eucharistia (2 0 0 3 ), 1 8 . 52 Saint Ignatius of Antioch, Epistle to the Ephesians. 49 50 II. Development of a Theology of the Environment 53 which commits us to work responsibly to safeguard creation. In the relationship between the Eucharist and the cosmos, in fact, we discover the unity of God’s design and are led to grasp the profound relationship between creation and the ‘New Creation,’ inaugurated by the resurrection of Christ, the New Adam. We participate in this new creation already by way of our Baptism (cf. Col 2 :1 2 f), and so, nurtured by the Eucharist, our Christian life opens us to the prospect of a new world, of a new heaven and a new earth, where the new Jerusalem descends from heaven, from God, ‘prepared as a bride adorned for her husband’ (Rev 2 1 :2 )5 3 . The eschatological tension evoked by the Eucharist expresses and reinforces the communion with the heavenly Church. A significant consequence of this eschatological tension inherent in the Eucharist is also the fact that it gives motion to our human journey through history, instilling a seed of living hope in the daily dedication of each individual to his or her given tasks5 4 . If, in fact, the Christian vision leads to looking toward ‘a new heaven’ and ‘a new earth’ (cf. Rev 2 1 :1 ), this does not weaken, but rather encourages our sense of responsibility toward the present earth5 5 . Eastern theology also applies the eschatological dimension of the Eucharist to the theology of the environment (Zizioulas 1994). The Eucharist, in its most intimate nature, contains an eschatological dimension which, for as much as it penetrates history, never fully transforms into history and thereby transcends history. The Eucharist will open the road not to the dream of the moral perfection of the world (according to an evolutionary framework), but to the need for the radical exercise and experience of the ‘kenosis’ and the cross, the only way to live the victory of the resurrection in the world until the end of time. As Pope Francis pointed out: “It is in the Eucharist that all that has been created finds its greatest exaltation. Grace, which tends to manifest itself tangibly, found unsurpassable expression when God himself became man and gave himself as food for his creatures. The Lord, in the culmination of the mystery of the Incarnation, chose to reach our intimate depths through a fragment of matter. He comes not from above, but from within, he comes that we might find him in this world of ours. In the Eucharist, fullness is already achieved; it is the living centre of the universe, the overflowing core of love and of inexhaustible life. Joined to the incarnate Son, present in the Eucharist, the whole cosmos gives thanks to God. Indeed the Eucharist is itself an act of cosmic love”5 6 . The Eucharist, nonetheless, will simultaneously offer the world a taste of the eschatological reality, which penetrates history through the Eucharistic assembly and makes our divinization in space and time possible. 53 54 55 56 Cf. Pope Benedict XVI, Apostolic Exhortation Sacramentum Caritatis, 9 2 . Cf. Pope St. John Paul II, Encyclical LetterEcclesia d e Eucharistia, 1 9 , 2 0 . Cf. Vatican II, Gaud ium et Spes, 3 9 . Pope Francis, Encyclical Letter Laud ato Si, 2 3 6 . 54 PAUL HAFFNER Bibliography Améry, C. 1 9 7 2 . Das End e d er Vorsehung. Die gnad enlosen Folgen d es Christentums. Hamburg: Rowohlt. Bardulla, E. 1 9 8 8 . I cristiani di fronte alla questione ambientale. In Bonora, A. 1 9 8 8 , L’uomo coltivatore e custode del suo mondo in Gen 1 -1 1 . In Caprioli and Vaccaro. Capra, F. 1 9 8 2 . The Turning Point. Science, Society and the Rising Culture. New York: Simon and Schuster. Caprioli, A. and L. Vaccaro. 1988. Questione ecologica e coscienza cristiana. Brescia: Morcelliana Cheney, J. 1 9 8 7 . Ecofeminism and Deep Ecology. In Environmental Ethics 9 : 1 1 5 -1 4 6 . Dawkins, R. 2 0 0 6 . The Selfish Gene.Oxford: OUP, 2 0 0 6 ), p.2 5 3 Greshake, G. 1988. La creazione come autorivelazione e dono di sé da parte di Dio. In Caprioli and Vaccaro. Haffner, P. 2 0 0 1 . The Mystery of Reason. Leominster: Gracewing. Haffner, P. 2 0 0 8 . Toward s a Theology of the Environment. Leominster: Gracewing. Haffner, P. 2 0 1 2 . Visione cristiana d ell’ambiente frutto d ella creazione d i Dio. Leominster: Gracewing. Haffner, P. 2 0 1 4 . The Tiara and the Test Tube. The Popes and Science from the Med ieval Period to the Present. Leominster: Gracewing. Hughes, J. D. 1 9 7 4 . Ecology in Ancient Civilisation. Albuquerque: University of New Mexico Press. Jaki, S. L. 1 9 7 8 . The Road of Science and the Ways to God . Edinburgh: Scottish Academic Press. Jaki, S. L. 1 9 8 6 . Science and Creation. Edinburgh: Scottish Academic Press. Jaki, S. L. 1 9 9 0 . The Savior of Science. Edinburgh: Scottish Academic Press. Jaki, S. L. 1 9 9 4 . Ecology or Ecologism. In Man and his Environment. Tropical Forests and the Conservation of Species, ed. G. B. Marini-Bettòlo. Vatican City: Pontifical Academy of Sciences. Kasper, W. 1988. La sfida ecologica alla teologia. In Caprioli and Vaccaro. Lehmann, E. 1 9 3 4 . Biologischer Wille. Wege und Ziele biologischer Arbeit im neuen Reich. München: Lehmann. Lohfink, N. 1 9 8 6 . Le nostre grand i parole. Brescia: Paideia. Passmore, J. 1 9 7 4 . Man’s Responsibility for Nature. London: Duckworth. Weber, M. 2 0 0 3 . The Protestant Ethic and the Spirit of Capitalism. Mineola, NY: Dover Publications. Whelan, R. J., Kirwan and P. Haffner. 1 9 9 6 . The Cross and the Rain Forest. Grand Rapids: W. B. Eerdmans. White, L. 1 9 6 7 . The historical roots of our ecological crisis. In Science 1 5 5 : 1 2 0 3 1207. Zimmerman, M. 1 9 9 0 . Heid egger’s Confrontation with Mod ernity: Technology, Politics and Art. Indianapolis: Indiana University Press. Zizioulas, I. 1 9 9 4 . Il creato come eucaristia. Approccio teologico al problema d ell’ecologia. Magnano: Qiqajon. C H A P T E R III ENLIGHTENMENT IS THE INTIMACY OF ALL THINGS. ECONOMICS, ENVIRONMENT, ETHICS, LAW, AND HUMAN RIGHTS A BUDDHIST PERSPECTIVE FOR A SUSTAINABLE PLANET Thanissara Social activist and author Naomi Klein perfectly summarizes the primary challenge of our times in the title of her book This Changes Everything: Capitalism vs. the Climate (Klein 2 0 1 4 ). It is now accepted by 9 7 % of scientists (Cook et al. 2 0 1 3 , 3 ) and informed, ethical, political and world leaders that we are in the midst of a devastating climate crisis. Alongside secular and worldly power, on 1 8 June 2 0 1 5 , the Papal Encyclical of Pope Francis “Laudato Si’” underlined the moral demand of many religious movements for immediate action to mitigate the effects of climate change by overcoming its causes. In spite of highly obstructive pockets of denial from political and religious extremists, and those representing unethical corporate interests, the overall consensus around climate change prioritizes and gives context to all other concerns. Our precarious situation challenges the foundations of our oil-based world economy and its philosophy of endless growth, which now increasingly depends on extreme extraction methods of fossil fuels. Endless production is a myth in that it does not take into account the actual limits of our earthbound reality. Fossil fuel based economies release 3 5 billion tons of carbon into the biosphere each year (Olivier et al. 2 0 1 4 ) due to human activity, including modern-day livestock practices. Overall this has catalyzed a catastrophic environmental crisis that will escalate famines, droughts, and floods, including traumatic ethnic, religious, and cross-border strife, mass migrations and extinctions, and, if we do not stop the heating of our Earth, the loss of human civilization (Richardson 2 0 1 5 ). Ultimately it will render the planet uninhabitable for most forms of life. Our collective situation is extremely urgent. American Buddhist monk, translator and activist, Bhikkhu Bodhi in his statement “Simple and Practical Steps toward Mitigating Climate Change” (Bodhi 2 0 1 5 ), estimates, from a report released by the Post Carbon Institute, called “Climate after Growth” (Hopkins and Miller 2 0 1 3 ), that we have at best only 2 0 -3 0 years to reduce carbon emissions by a necessary 8 0 %. Bodhi summarizes, “In brief, the window of opportunity is closing fast”. 56 THANISSARA To grasp our dire situation, we have to understand that life on Earth is possible due to a viable biosphere that depends on the ability of plants and trees to photosynthesize the carbon we produce. Our biosphere is one of the most vulnerable parts of the Earth’s ecosystem and the most essential to sustain life. However, as we pour massive amounts of carbon into our fragile atmosphere, heating the planet, and as we clear and burn gigantic tracts of rainforest, which are the ‘lungs’ and carbon sinkholes of our planet, the delicate balance needed to sustain a should be livable system is in peril. The effects of our unsustainable lifestyles are everywhere. The earth’s ecosystems are dying. The oceans are acidifying, freshwaters are drying up, rain forests are being cleared and species are vanishing. As warming continues to evaporate water from the earth, drought, desertification, and the loss of arable soil increase, which in turn puts more precipitation into the atmosphere, generating extreme weather events across the planet, leaving large expanses of human and animal habitat utterly demolished through monster typhoons, hurricanes and tsunamis (Thanissara 2 0 1 5 ). Alongside the inability of forests and oceans to regulate our weather, we are now seeing the reduction of the ice caps (Radford 2 0 1 4 ), which are unable to reflect back the heat and radiation from the sun, and this further intensifies warming. We now produce the equivalent heat of four Hiroshima atomic bombs a second, which is 4 0 0 ,0 0 0 bombs a day, every day(Cook 2 0 1 3 ). As the heat increases, and scarcity of basic resources like water escalates, then wars and international conflicts will become an inevitable part of our daily landscape. For example, a few years before Syria exploded into its devastating civil war, 6 0 percent of its fertile land had turned to desert. By 2 0 1 0 , the drought had killed 8 0 percent of the country’s cattle. At the time, the Syrian minister of agriculture, Ahmad al-Qadri, lamented that the economic and social fallout from the drought was “beyond our capacity as a country to deal with” (Friedman 2 0 1 4 ). Currently there are a staggering eleven million Syrians displaced (Hummer 2 0 1 5 ). For the most part, refugees undergo enormous struggles to access the most basic human needs, such as food, water, security, education, and a cohesive community. Even though our circumstance is alarming, we are still caught in a pathological push to extract more and more resources through the machinations of a corporate world that seeks total control. The recently proposed Trans-Pacific-Partnership deal (Chase 2 0 1 5 ), which was negotiated in secret, seeks to give over extraordinary legal powers to the corporate world, which would render whole nations and continents subservient to their agenda (Granville 2 0 1 5 ). In March 2 0 1 5 , the New York Times reported that “An ambitious 1 2 -nation trade accord pushed by President Obama would allow foreign corporations to sue the United States government for actions that undermine their investment ‘expectations’ and hurt their business, according to a classified document. This basically means that taxpayers, ordinary people who have no democratic say in such negotiations and agreements, would be required III. Enlightenment is the Intimacy of All Things 57 to pay out vastly powerful corporate interest groups as compensation for ‘expected future losses’” (Weisman 2 0 1 5 ). While such political manipulation, at the behest of corporate power, undermines true democracy (Chomsky 2 0 1 0 ), we will continue to experience resource scarcity, environmental collapse and wars. The corporate mindset, fuelled by an unaccountable banking system (Buiter 2 0 1 4 ), which is addicted to hyper-profiteering through manipulation of a mercurial stock market, is incapable of thinking beyond immediate acquisitions and gains. As unregulated corporate power, propped up by unethical bankers, becomes the overarching influence on the destiny of all nations, peoples, species, and the Earth itself, we will find ourselves increasingly unable to reverse the collapse of a sustainable world or protect life from solely being a means to make a profit. Turning a profit is a reasonable aim, but when it is obsessively driven, so every other concern becomes secondary, then our economic structure, which is global capitalism, will continue to generate systemic inequity with its consequent devastation. Leading French economist Thomas Piketty in a groundbreaking book points out that inherited wealth will always grow faster than earned wealth (Piketty 2 0 1 4 ). Paul Mason, in the UK newspaper The Guard ian writes as follows:, “The fact that rich kids can swan aimlessly from gap year to internship to a job at father’s bank/ministry/TV network –while the poor kids sweat into their barista uniforms –is not an accident: it is the system working normally. If you get slow growth alongside better financial returns, then inherited wealth will, on average, ‘dominate wealth amassed from a lifetime’s labour by a wide margin’, says Piketty. Wealth will concentrate to levels incompatible with democracy, let alone social justice. Capitalism, in short, automatically creates levels of inequality that are unsustainable” (Mason, 2 0 1 4 ). To unravel the inequities of our current economic system, which is based on the privilege of inherited wealth, we have to go back in history to see that the astonishing rise of capital wealth within Europe, from the late 1 5 th to 1 9 th centuries, was rooted in nearly four hundred years of African slave trade, alongside rapacious colonization of lands rich with spices, minerals, gold and all manner of tradable goods. Slavery is an old story; but the African slave trade is particularly lost to amnesia. Contemporary African American artist Nona Faustine found a way, however, to grab our attention by standing naked in Wall Street, New York, in ill-fitting white shoes. Faustine comments on this art activism in her “White Shoes” series, called, “From Her Body Came Their Greatest Wealth”: “Standing at the exact spot where they sold Native and African men, women, and children 1 5 0 years ago… I found myself at the curtain of time between two eras, past and present. I went into a deep reflection” (Nona 2 0 1 5 ). To reflect on the roots of our Euro-centric privilege is truly sobering. By the time of the conclusion of the trans-Atlantic slave trade in about 1 8 6 5 (USA), Europeans and Americans had enslaved and transported 58 THANISSARA more than 1 2 million Africans to the Americas and West Indies. At least 2 million, historians estimate, didn’t survive the journey (Gates 2 0 1 4 ). The grand stately homes which are dotted across Europe, and the sweeping plantations, estates, and magnificent city buildings across America are, brick by brick, constructed from immense exploitation of Africa, Asia, and First Nation People through slavery and the theft of their resources, and lives. Tracing back the roots of our current economic system to the oppression and servitude of people of colour, and semiindentured working classes helps us understand an ingrained mindset that justifies the acquisition of wealth through deeply unethical means. This mindset employs the extreme objectification of the ‘other,’ who is seen as so different from ourselves that it is perfectly acceptable to remove their rights, rip them away from family and tribal units, use their energy, and manipulate their bodies for profit and for the sadistic act of subjugation. The prevailing capitalist economic system, while it has vastly increased prosperity and extraordinary advances in all realms of human endeavour and has enabled increased living standards for a large global middle class, is built on a cancerous foundation. The core premise is the assumption of personal ownership, and the accumulation and storing up of assets, without social responsibility. The amassing of untold wealth by a small percentage of the world population is an increasing trend that is profoundly detrimental to the web of sustainable life. A report released in January 2 0 1 5 by Oxfam states the following: “In 2 0 1 4 , the richest 1 % of people in the world owned 4 8 % of global wealth, leaving just 5 2 % to be shared between the other 9 9 % of adults on the planet. Almost all of that 5 2 % is owned by those included in the richest 2 0 %, leaving just 5 .5 % for the remaining 8 0 % of people in the world. If this trend continues of an increasing wealth share to the richest, the top 1 % will have more wealth than the remaining 9 9 % of people in just two years” (Oxfam Issue Briefing 2 0 1 5 ). The exponential surge of capital wealth owned by an extremely small group of people has led to the manipulation of political power, which was sanctioned, for example in the USA through the controversial Citizens United provision. This provision is founded in an American legal concept of corporate personhood. Fred Wertheimer, President of the USA based reform group, Democracy 2 1 , wrote, “In 1 7 8 9 , the Founding Fathers created a constitutional system of government by the People. In 2 0 1 0 , five Supreme Court Justices … changed it to a constitutional system of government by millionaires, billionaires and corporations” (Wertheimer 2 0 1 4 ). Basically Citizens United allows unfettered funding to pour into political parties from the hands of stealthy corporate concerns. The use of vast sums of money to manipulate political outcomes has the potential to turn nation states into corporate and banking fiefdoms that are controlled by a plutocracy. When money trumps all other concerns, society loses any capacity to guide itself by means of ethical, humane, economically fair, socially just, and environmentally sound laws. III. Enlightenment is the Intimacy of All Things 59 Overall, capitalist wealth, while increasingly privileging a minority, is tied to extreme abuse of the environment and its resources, which continues the long history of colonialism that has usurped land, wealth and assets by brutalizing millions through genocide, servitude and slavery. African-American scholar-activist W. E. B. Dubois describes “the transportation of ten million human beings out of the dark beauty of their mother continent into the new-found Eldorado of the West” as a “descent into Hell” (Dubois 1 9 9 8 , 7 2 7 ). For centuries the slave trade became an industry of extraordinary complexity, whose driving force was the application of terror for the extraction of maximum profit. The Atlantic slave trade was one of the largest industries within modern human history. It depended on extreme use of violence in the hands of concentrated power –merchants, ship captains, bankers, shareholders –that extended beyond the slaves to crews of indentured sailors, who were also tyrannized, subjected to harsh discipline, abandoned when sick, and sometimes whipped to death for slight transgressions (Rediker 2 0 0 8 , 1 0 5 ). Sailors would be instructed by captains, or take it upon themselves, to flog, force-feed, and sadistically coerce those pinned down helplessly in the galleys beneath them (Rediker 2 0 0 8 , 1 5 ). Even so, sailors, left to die from starvation and horrific diseases in far-flung ports were sometimes taken in and ministered to by the very Africans they helped to capture and enslave (Rediker 2 0 0 8 , 3 5 4 ). Beside white Europeans, local African chiefs, kings and traders were also complicit, using slavery as a means to dispose of enemies, exact retribution, seize assets from other tribes, and curry favour with European power. Overall, this deeply ignoble and devastating trade could only be maintained through utilization of the most base and vicious traits of the human mind and heart. In his testament to the African spirit, Rediker records, “Amid the brutal imprisonment, terror, and premature death, they [the enslaved Africans], managed a creative, life-affirming response; they fashioned new languages, new cultural practices, new bonds and a nascent community among themselves aboard the ship … Their creativity and resistance made them collectively indestructible” (Rediker 2 0 0 8 , 7 ). The slave trade eventually ignited a moral repugnance within more liberal-minded Europeans and Americans, which birthed the Abolitionist movement that forced slavers to stop sailing in 1 8 0 8 , at least legally. After slavery, a deeply wounding racial dynamic imbedded itself in the Euro-centric society of America, and beyond. This has played out as discrimination against African Americans who continue to experience economic deprivation, unjust incarceration, and police brutality. Slavery might have been abolished, but its legacy is deeply woven into the structure of our social, environmental, legal and economic systems, of which Rediker says, “I offer this study [of slave ships] with the greatest reverence for those who suffered almost unthinkable violence, terror, and death, in the firm belief that we must remember that such horrors have always been, and remain, central to the making of global capitalism” (Rediker 2 0 0 8 , 1 3 ). 60 THANISSARA Before leaving Rediker’s slave ship, it is important to note the psychological disconnect that British novelist Barry Unsworth captures in his renowned novel Sacred Hunger: “Picturing things is bad for business … it can choke the mind with horror if persisted in. We have graphs and tables and balance sheets and statements of corporate philosophy to help us remain busily and safely in the realm of the abstract and comfort us with a sense of lawful endeavour and lawful profit. And we have maps” (Unsworth 1 9 9 3 ). Sayer says that “Unsworth describes a ‘violence of abstraction’” (Sayer 1 9 8 7 ). Rediker comments that this has plagued the study of the slave trade from its beginning. It is as if the use of ledgers, almanacs, balance sheets, graphs, and tables – the merchants’ comforting methods –has rendered abstract, and thereby dehumanized, a reality that must, for moral and political reasons, be understood concretely. An ethnography of slave ships helps to demonstrate not only the cruel truth of what one group of people (or several) was willing to do to others for money –or, better, capital –but also how they managed in crucial respects to hide the reality and consequences from themselves and from posterity. Numbers can occlude the pervasive torture and terror, but European, African, and American societies still live with their consequences, the multiple legacies of race, class, and slavery. The slaver is a ghost ship sailing on the edges of modern consciousness” (Rediker 2 0 0 8 , 1 2 -1 3 ). The ‘ghostly slave ship’ continues to course the depths of our corporate driven economy, with its haunting toll of hidden suffering. Capitalism, unmoored from any ethical ground, from any allegiance to land, people or nation state, has gone completely rogue; there is little restraining its increasingly extreme practices. The ‘violence of abstraction,’ continues its ghastly ritual in the daily toil of millions who are dispensable cogs in the factory machinery of ‘outsourcing’. In March 2 0 1 4 , the U.S. Department of Agriculture allowed the passage of millions of chickens to be processed in China (Huehnergarth and Siegel 2 0 1 4 ). Instead of $ 11 an hour for a U.S. worker, companies can pay $ 1-$ 2 an hour. However, the true cost to the environment due to the carbon impact of ships traveling 7 ,0 0 0 miles across the ocean is not reflected. Nor is the cost to the unprotected workers kept in servitude, and particularly not to chickens as sentient-feeling beings that, although slaughtered before the journey, are caught in a system of extreme violence imposed on billions of animals through the horrific practice of factory farming. The use of everyday items, including computers, iPods, and smart phones, is directly linked to a global culture of colonization, servitude, and an extreme lack of environmental responsibility. Every time we use a mobile phone, we handle ‘conflict minerals’, states Frank Piasecki Poulsen, Danish documentary film director of “Blood in the Mobile” in his report from the Democratic Republic of Congo, where, “children are regularly used to work the mines, and the profits continue to fuel a silent, and rarely mentioned war that is the ‘bloodiest conflict since the Second World War’” (Poulsen 2 0 1 2 ). The minerals are then shipped to China to III. Enlightenment is the Intimacy of All Things 61 be processed for our everyday use. Xu Lizhi, a 2 4 -year-old migrant worker from Shenzhen, committed suicide on September 3 0 th 2 0 1 4 by jumping out of a window at Foxconn where he worked to make most of the world’s Apple products (Anon 2 0 1 4 a). This is his poem: I swallowed a moon made of iron They refer to it as a nail I swallowed this industrial sewage, these unemployment documents Youth stooped at machines die before their time I swallowed the hustle and the destitution Swallowed pedestrian bridges, life covered in rust I can’t swallow any more All that I’ve swallowed is now gushing out of my throat Unfurling on the land of my ancestors Into a disgraceful poem (Anon 2 0 1 4 a). Xu Lizhi’sheartbreaking poem gives a name and face to those used as cogs in the ‘ghostly ships’ of the mega corporations, like Apple, that power our profit-making machine. Such personal stories move us from abstraction into shared human sensibility. It is empathetic attunement to the ‘other,’ rather than the ‘violence of abstraction,’ that initiates a journey of reassessment regarding the systems we inhabit. Empathetic resonance is vital, as it helps to move us toward a more equitable world beyond selfconcern to inter-connection. Max Planck, the founder of quantum physics said “all matter originates and exists only by virtue of a force. We must assume behind this force the existence of a conscious and intelligent mind. This mind is the matrix of matter” (Planck 1 9 4 4 ). We are beginning to understand the implications of what the Buddha taught 2 ,6 0 0 years ago, which Buddhist teacher Thich Naht Hanh sums up by saying “We are here to awaken from the illusion of our separateness” (Naht Hahn 2 0 1 5 ). There is no ultimate separation between ‘self’ and ‘other’. Insight into the seamless nature of reality is an essential catalyst for evolving from a species driven by greed, fear and violence, to one that understands harming ‘other’ ultimately harms ‘self’. In reality we are truly interwoven together within a unified field of awareness. Quantum theory, in accordance with Buddhist philosophy, implies that there is no exact, static objective reality. Instead all phenomena arise within our awareness. This means that the experience of our ‘objective’ world depends on the subject who experiences, and how that experience is received. Through intelligence developed over millennia, we know a lot about the objective world, but much less about the subject. We experience our subjectivity through a multifaceted prism that distorts a truer picture. We see ourselves in a partial way, usually through our identities, the roles we play, and our personalities and psychologies. The way we experience ourselves tends to inform how we react to ‘objects’. There is a ‘me’ that feels desire, aversion, or apprehension, in relationship to ‘it’. When we don’t see the deep co-arising seamless dynamic of subjectobject, which both arise in relationship to each other, then our subjective 62 THANISSARA experience becomes defined by the gain and loss of ‘objects,’ or people, events, things, and possessions. The structures of the subjective self are patterned and shaped by ancestral and historic influences. The process of industrialization shifted humans from local, land-based economies into urbanized systems of migrant labour, which continues to this day around the globe. Local farming-centred economies, rooted in feudalistic systems, left much to be desired, and for many indentured or impoverished, the opportunity to seek economic freedom and to travel was welcome. The process of leaving the land and small communities, however, initiated a collective loss of belonging, which has been replaced, particularly since the Second World War and the fall of communism, with a global ‘village’ of humans as consumers and cogs in the wheel of corporate capitalism. Identities that were once connected with the earth, community, locally based economies and governing systems are now replaced with a soulless, sound bite, celebrity fuelled monoculture, directed through an increasingly oligarchic owned media machine. The overall march of industrialization, urbanization, and the manipulation of humans into fodder for corporate wealth have left a profound loss of connection in its wake. The loss of our relationship to our place within the web of life is an underlying suppurating wound. This wound the Buddha called d ukkha, the dis-ease of feeling apart from the whole. The Buddha, in his incisive investigation of consciousness, cut to the core of our original wound of separation when he declared avijjapaccayasankhara (Bodhi 2 0 0 0 , 5 5 3 ). This means when ignorance (avijja) is present, the mind does not know its true nature as primordial awareness, or pure consciousness, and so seeks placement in time and space through volition and identification (paccayasankhara) with conditioned patterning, which we experience as the sense of self. The self, formed by personal tendencies and streams of conditioning factors, such as intention, views, desire, aversion, aims and aspiration, is insubstantial and impermanent. As the self craves stability and certainty in an unstable and uncertain world, it generates the conditions for dukkha, or suffering, and conflict. The primary focus of Buddhist practice is to alleviate the experience of d ukkha, and the painful reactions it activates, through insight into the deeper seat of mind, which is pure, unconditioned, ‘conscious-awarenessknowing’. Dogen expressed this insight when he said “enlightenment is the intimacy of all things” (Kornfield 1 9 9 3 , 3 3 2 ). When we feel the natural connection that awareness facilitates, we notice and experience a deeper love that moves through sentient life. The path into loving awareness, however, is a journey through layers of pain that come from our loss of connection. Even so, d ukkha, or suffering, when engaged rather than denied, is a positive marker along the way of awakening. This is because as we explore the causes of suffering, we discover solutions and new ways forward. The Buddha taught the practice of meditation as central to his path of awakening. The core of this path is the development of mindfulness III. Enlightenment is the Intimacy of All Things 63 and contemplative inquiry. This begins with the simple act of pausing to connect with our personal embodied experience. In the same way, stopping to connect with the body of the Earth under duress is the first thing to do, in order to recognize the deep dysfunction of our ways of living that are fuelling systems of economic and environmental suffering. Exploring what has been set in motion and the impact is an important stimulus for change. While our climate crisis is catalyzing a social, economic and energy revolution, we will only repeat old paradigms of exploitation, however, unless we understand that our crisis is rooted in a dualistic consciousness. The consciousness that is wedded to ‘subject’ in relationship to ‘object,’ while fundamental to our everyday experience, veils the truth of our selves as woven within a seamless whole where, “the plurality we perceive is only an appearance; it is not real” (Schrodinger 2 0 0 2 , 1 5 4 ). According to the Buddha, our experience of the objective world arises from within the mind itself, and is dependent on attention. The fundamental nature of attention is conscious awareness. Wherever we direct attention, it is there that our experience of the ‘world’ happens. In the Buddhist practice of mindfulness, which is an open, non-judgmental attention that is empathetic and curious, awareness is directed to body, feeling and sensation, mind states and phenomena. Under investigation, as the Buddha pointed out, both ‘self’ and ‘world’ are seen as a co-arising dynamic that is mutually shaping and informing of each other. When we glimpse this subtle level of our experience, then we begin to understand that the self and the world are reflections of each other. In that regard, what does it say about us, when the world reflects the projections of our minds? To move into subtler layers of reality, we can turn to Einstein, who said “there is no essential distinction between mass and energy. Energy has mass and mass represents energy”(Einstein 2 0 0 2 , 1 0 2 ). Compare this to the essence of the Heart Sutra, which states that “form is emptiness; emptiness is form”. The Heart Sutra is said to have been taught by the Buddha at Vulture Peak in Bihar, India, toward the end of his life. Scholars also say that the Heart Sutra emerged from within the mists of time, after the Buddha’s demise, which challenged the hierarchal and priestly orthodoxy that Buddhism became. It does so by completely demolishing all methods, all accepted and conventional Buddhist teaching, all timebound rituals, and all religiosities. It even takes away coveted attainments and all hard-earned knowledge. In short, it removes the currency of conceptual brilliance as a means to understand the nature of reality. Instead, the Sutra radically points the disciple, our clever and brilliant mind that continually differentiates, back to the immediate and simple recognition of the seat of consciousness (Thanissara 2 0 1 3 , 6 ). The renowned Buddhist meditation master Ajahn Maha Boowa equates this ‘seat of consciousness’ with the mind’s essential ‘knowing’ nature, which he also calls pure awareness (Boowa 2 0 1 2 , 9 6 ). He also states that “the mind by its very nature is amata, undying” (Boowa 1 9 9 6 ). 64 THANISSARA The ‘amata d hamma’ or ‘deathless reality’ is a term used by the Buddha, of which he said, amatogad hasabbe d hamma (Thera & Bodhi 1 9 9 9 , 2 5 1 ), “merging in the deathless are all things”. Siddhartha Gautama became known as the Buddha after his enlightenment as it was the term that best describes the essential nature of awakening, which is ‘bud d hi’ or ‘to know’. This quality of knowing, at the seat of mind, is further illuminated by the Sanskrit word for wisdom, which is prajna. Prajna, usually translated as ‘wisdom’ has the core meaning of knowing intelligence. Implied in the prefix pra is ‘before’, and jna ‘knowledge’ (Rhys-Davids and Stede 1 9 2 1 , 3 7 8 & 3 9 0 ). Intuitive, quantum knowing emerges from the discipline of ‘before knowing’ or the stripping away of all assumptions. Pure knowing has a quality that is present, curious, inquiring, and perceptive. This is an intelligence and clarity that is less concerned with objectifying the world as something to be controlled and owned, and more focused on ‘coursing the depths of the mystery’ (as stated in the Heart Sutra), where the world and its ‘objects’ dissolve into profound subjectivity. It is here that the intimacy of all things is revealed. Things are ‘known’, but not as objects. They are known as part of an undifferentiated subjectivity. Colloquially, it can be said that this is the activity of ‘One’ –the profound seat of knowing consciousness –experiencing itself as ‘Many’. This revelation is the opposite of splitting the atom, which led to the most destructive power ever unleashed. Instead all ‘things merge’ within atomic consciousness, which cannot be further divided as it has no location in time or space, and no boundaries. In Buddhist understanding the fundamental nature of mind is this very same undivided consciousness. Undivided consciousness, or the subjective seat of consciousness, is the deepest domain of mind, citta, which can also be translated as ‘heart’. Generally speaking, Buddhist thought locates mind in three domains. The first is the cognitive, thinking, and conceptual domain, which designates difference through language. Things are things because we put names and attributes to them. From the seamless whole of life, we pull out a piece and say ‘tree’ which makes it a thing. Once there is a ‘thing’ that we name, we lose perspective, for example, that a tree is also earth, water and sun, that it is part of an inter-connected system. The second domain is to do with the senses and sensory perception, which generates an inner ‘me’ and an outer ‘thing’ each side of the sense door. We say ‘I’ see, hear, taste, smell, feel, think about ‘it.’ In reality there is no ultimate boundary between ‘the seer’ and ‘the seen’. They co-arise moment by moment and generate an illusory sense of a cohesive and stable self and world. It is an illusion that not only collapses on investigation, but also reveals a lack of substantiality (Thanissara 2 0 1 5 , 3 6 ). Boaz tells us that the Danish physicist Niels Bohr said “everything we call real is made of things that cannot be regarded as real” (Boaz 2 0 1 3 ,1 4 ). The first two domains of thought and sensory consciousness are the surface, like waves on the ocean, while the third domain, citta, is both the patterning of mind/heart, from past conditioning, but at its depth, citta is mysterious and unmoving; it is undivided, pure III. Enlightenment is the Intimacy of All Things 65 consciousness. Both the surface and depth are all water; in the same way all functionalities of mind are consciousness. When the mind is liberated from false assumptions, and is no longer shaped by, and reactive to, the surface play of phenomena, or its own conditioning, it recognizes its true nature as ‘deathless’ and as interconnected with everything else. Consequently, seeing the falseness of our separate, hyper-individualized perspective, orientates us within the inner shifts that can support an outer revolution. Our climate crisis is accelerating us into a paradigm shift we now have to undertake. It is a journey that has the potential to bring us back home on every level. Inwardly, we listen into the intuitively intelligent awareness, present within the kaleidoscope of the phenomena. Here we meet what is longed for, our own intimate heart. When we touch our true heart, the world is transformed and the search for what is lost ends. We no longer endlessly consume the Earth to fill up our inner desolation. Instead we know our true worth. We enter our authentic being, which can both balance inner peace with the imperative to engage. In sharp contrast to the seamless world of the Heart Sutra, the cognitive mind is susceptible to mapping out differences in ways that can swiftly degenerate into strife and conflict. Almost nowhere was this ‘setting apart’ more pronounced than in the southernmost part of that great land mass of Africa, where it spawned the bitter fruit of apartheid. The Heart Sutra invites us ‘to live without walls of the mind’ in contrast to one of the most entrenched walls: that of racist legislation, which shaped South African society for over fifty years. Before that, three hundred years of colonial rule, which laid the ground for apartheid, wrought genocide on the First Nation People of the San, or ‘Bushmen’ (Thanissara 2 0 1 3 , 7 ). The First Nation People, our ancestors, lived for thousands of years in symbiotic relationship with the forces of nature. “We, the Original Caretakers of Mother Earth, have no choice but to follow and uphold the Original Instructions, which sustains the continuity of Life. We speak on behalf of all Creation today, to communicate an urgent message that man has gone too far, placing us in the state of survival. We warned that one day you would not be able to control what you have created. That day is here. This self-destructive path has led to the Fukushima nuclear crisis, the Gulf oil spill, tar sands devastation, pipeline failure, impacts of carbon dioxide emissions, and the destruction of ground water through hydraulic fracking, just to name a few. Powerful technologies are out of control and are threatening the future of all life. All Life is sacred. We come into Life as sacred beings. When we abuse the sacredness of Life we affect all Creation. We urge all Nations and human beings around the world to work with us, the Original Caretakers of Mother Earth. We have reached a crossroads of life and the end of our existence … We must work in unity to help Mother Earth heal so that she can bring back balance and harmony for all her children” (Indigenous Action Media Database 2 0 1 3 ). 66 THANISSARA The genocide of First Nation People, and the ensuing brutal racial assimilation of forced schooling in the white acculturated systems of the nineteen hundreds, as in the USA and Australia, or the obsessive categorization of every citizen according to race and colour, as in South Africa, continued the practice of enslavement and dispossession. The effect of sanctioned prejudice that discriminates against the ‘other’ due to ‘difference’ ultimately generates division against one’s own sensitivity. This sensitivity, our heart, which intuitively knows the ‘intimacy of all things,’ is pulled into a proliferating mind that tends to generate a fractured and incoherent world. It is being defended against one’s own deeper heart; a heart that in reality doesn’t experience the world, or others, as apart from itself, that is the primary cause for our burning world. The fundamental separation from the heart’s sensitive resonance with life generates escalating spheres of disconnect and madness. The ultimate madness is the current drive for pathological power and obscene profit that is killing the ecological systems that our collective lives depend on. Our collective apartheid has now divorced us from understanding that our lives depend on the Earth and nature. We have become arrogant, as if all of Mother Nature, right down to the last patented seed and cell, were there to be owned and exploited for corporate and personal gain. Our collective state of complete and utter disrespect for the Earth, its species, and its limited resources, coupled with political denial, and a corporate hijacking and distortion of true human values, has desecrated the sacred and rendered us soulless. Yet at this moment in our long evolutionary history, we are on the cusp of a ‘state shift’ due to climate change, where there is no going back. So on the cusp of losing everything, we really have only one choice. We have to evolve out of our pathological, dualistic consciousness by living our profound interconnectedness as fully as we can. At its core, the Heart Sutra offers redemption through the remembrance of our capacity for love, joy, awe and humility. The text encourages us to live more freely by relinquishing our need to acquire all sorts of securities to placate desire and fear. In its iconic line, form is emptiness, emptiness is form; the Sutra inducts us into the deepest mystery of consciousness and matter. In reality they are not separate. There is no objective world without the subject. Who that ‘subject’ is, is the ultimate mystery. A mere glimpse of that adamantine “I Am That” burns up eons of ignorance, and in an instant we are delivered from craving. From there, although despair and fear touch the heart, and although stress, aversion, agitation and sorrow visit as guests, the heart maintains its core integrity and unshakeable constancy. And so the Sutra encourages a leap, a radical shift. We are to relinquish all that is false, all d ream thinking, and leap beyond the walls of the mind . We are instructed to place our trust in our aware, undivided heart that awaits our return. It is this heart that will save us, because it brings us back to being truly human, sensitive, ethical, and responsive. We don’t have to become a disembodied, fractured, addicted, and crazed machine that compensates III. Enlightenment is the Intimacy of All Things 67 the desperate ache of our inner void through endless consumption (Thanissara 2 0 1 3 , 9 -1 1 ). Capitalism, and its activity of consumption, has unmoored itself, in increasingly secular societies, from religious morals and constraints, from empathetic concern, and from any understanding of the inter-dependent nature of cause and effect. We live in an age where there is no God to underwrite an externally imposed religious moralism. Instead it is for each of us, personally and collectively, to reclaim and evolve an inner ethical conscience rooted in empathy, and the contemplation of cause and effect. Beyond our human-made laws, the Buddha taught the law of karma-vipaka, which literally means action-result. We live within the field of results that have come about from previous actions. The primary cause for determining karmic results is the intentionality of the mind; as stated by the Buddha: All states of being are determined by mind. It is mind that leads the way. Just as the wheel of the oxcart follows The hoof print of the animal that draws it, So suffering will surely follow When we speak or act from an impure mind All states of being are determined by mind. It is mind that leads the way. As surely as our shadow never leaves us, So well-being will follow When we speak or act With a pure state of mind (Munindo 2 0 0 0 , 7 ). The result of our colonial, racist, and capitalist past has rendered an extremely potent and intense result. While the Buddha spoke of the mind “Burning with the fire of lust, with the fire of hate, with the fire of delusion” (Bodhi 2 0 0 0 , 1 1 4 3 ) 2 ,6 0 0 years ago, we now are in the midst of our planet that is literally burning with the fires of lust, hatred and delusion. Our culture of consumption has grossly assumed license for unfettered greed and a pathological drive for procurement, all of which is underpinned by war mongering and political duplicity. McMurtry sums up the results as follows: “The air, soil and water cumulatively degrade; the climates and oceans destabilize; species become extinct at a spasm rate across continents; pollution cycles and volumes increase to endanger life-systems at all levels in cascade effects; a rising half of the world is destitute as inequality multiplies; the global food system produces more and more disabling and contaminated junk food without nutritional value; non-contagious diseases multiply to the world’s biggest killer with only symptom cures; the vocational future of the next generation collapses across the world while their bank debts rise; the global financial system has ceased to function for productive investment in life-goods; collective-interest agencies of governments and unions are stripped while for-profit state subsidies multiply; police state laws and methods advance while belligerent 68 THANISSARA wars for corporate resources increase; the media are corporate ad vehicles and the academy is increasingly reduced to corporate functions; public sectors and services are non-stop defunded and privatized as tax evasion and transnational corporate funding and service by governments rise at the same time at every level” (McMurtry 1 9 9 9 ). To be fair, Capitalism has been an extraordinary innovator for human endeavor and procurement of wealth. After the two brutal World Wars, sparked by the European colonial agendas of the last century, we have an explosion of economic and technological power. Even so, while some have benefited from a free market system, others have been left behind, struggling to acquire basic resources that have been hijacked by dictators, warmongers, and in contemporary times, austerity politics imposed by faceless monetary systems. But now, we are all waking up to the shadowy underbelly of our false assumptions of everlasting growth, and our desire for untold wealth. Instead of the bright, hopeful future we dreamt of, the causes set in place are ripening into a nightmare. We are fast waking from a fabulously intoxicating party to the consequences of our shortsightedness. Such an awakening, sharply bringing us against a crunch point, is truly sobering. Such a crunch point is the fraying of the idealistic union of Europe, engineered over the last decades. The optimistic union is now riven with economic disparity. Currently Greece is struggling to maintain its sovereignty in the face of an extreme debt collection austerity drive, which has demolished its economy and undermined a stable and viable middle class and a living wage for the working classes. Cuts to pensions, increase in taxes, 5 0 % youth unemployment, and a rise of child mortality, has generated a sharp increase of suicides among men (Anon 2 0 1 4 b). This has all been due to a policy of fiscal severity, which is considered punishing by Piketty, and even by the International Monetary Fund, who want European officials to grant some kind of debt relief; a move strongly opposed by Germany –even though, as Piketty points out, after World War Two, Greece, alongside other nations, wrote off Germany’s debt, enabling it to become the economic powerhouse of Europe. A current proposal from Germany regarding the payment of Greek debt is that Greece transfer €5 0 billion of state assets, which could mean the sale of islands, historical landmarks and the privatization of properties to be managed by some kind of external trust. Some have called the situation in Greece a coup by the EU banking system (Brinded 2 0 1 5 ). Pulitzer prize winning journalist Chris Hedges offers his scathing assessment: “The Greeks and the U.S. working poor endure the same deprivations because they are being assaulted by the same system—corporate capitalism. There are no internal constraints on corporate capitalism. And the few external constraints that existed have been removed. Corporate capitalism, manipulating the world’s most powerful financial institutions … does what it is designed to do: It turns everything, including human beings and the natural world, into commodities to be exploited until exhaustion or collapse. In the extraction process, labor unions are III. Enlightenment is the Intimacy of All Things 69 broken, regulatory agencies are gutted, laws are written by corporate lobbyists to legalize fraud and empower global monopolies, and public utilities are privatized. Secret trade agreements –which even elected officials, who view the documents, are not allowed to speak about – empower corporate oligarchs to amass even greater power and accrue even greater profits at the expense of workers. To swell its profits, corporate capitalism plunders, represses and drives into bankruptcy individuals, cities, states and governments. It ultimately demolishes the structures and markets that make capitalism possible” (Hedges 2 0 1 5 ). The single euro currency, when ratified by the 1 9 9 2 Maastricht treaty, was meant to pave the way to a more unified continent, moving it beyond its terrible history of war and mass slaughter. While intentions were likely positive at that time, they were unfortunately shortsighted. Economist Wynn Godley predicted the outlines of the crisis in Greece when he said, “If a country or region has no power to devalue, and if it is not the beneficiary of a system of fiscal equalization, then there is nothing to stop it suffering a process of cumulative and terminal decline leading, in the end, to emigration as the only alternative to poverty or starvation” (Godley 2 0 1 5 ). In response to what is widely considered a fiercely gruelling reaction to Greek debt by its debtors, which will likely turn it to a beggar state, Piketty, in an interview with Die Zeit, challenges the view that Germany and France have behaved better than Greece when it comes to paying off debts. “Germany is the country that has never repaid its debts,” Piketty states, while calling for a “conference on all Europe’s debt” (Piketty 2 0 1 5 ). What we really need is a conference on global debt. We need to ask what debt is really owed, and to whom. If we consider the foundations of our current capitalist wealth, then, as African American artist Nona Faustine demonstrates, we are indebted far beyond our current European crisis. Our wealth is ‘From Her Body;’ that is, the bodies, blood, sweat and tears of millions of enslaved, indentured, murdered bodies, and from the body of our magnificent and abundant Earth. An earth that can no longer sustain and support the increasingly extreme demands we place upon her. Those who now profit most from oligarchic capitalism, through the extraction of the earth’s resources, semi-slave labor, and exploitation of the working classes, are the most indebted. It is everyday taxpayers who help subsidize global oil companies, to the tune of $ 5 .3 tn every year, or equivalent of $ 1 0 m a minute every day (Carrington 2 0 1 5 ), which in the USA taxpayers subsidize with $ 4 .8 billion in tax breaks each year. Kroll writes as follows: “Oil and gas companies and their employees have pumped more than $ 3 5 7 million into federal candidates’ campaigns since 1 9 9 0 , with $ 4 out of every $ 5 going to Republicans. And that’s nothing compared to what they’ve spent on lobbying: more than $ 1 .4 billion in the past 1 5 years. Last year, the industry employed 7 9 6 lobbyists, nearly 6 0 percent of them ex-members of Congress and staffers who’d come through the revolving door from Capitol Hill … Stepping on Big Oil’s toes has always been 70 THANISSARA risky, but in the post-Citizens United era, oil and gas executives can pour unlimited money (sometimes anonymously) into races” (Kroll 2 0 1 4 ). Corporations such as Exxon gave more than $ 2 .3 m to members of Congress and a corporate lobbying group that deny climate change; it also channelled about $ 3 0 m to researchers and activist groups promoting disinformation about global warming over the years (Goldenberg 2 0 1 5 ). Meanwhile its CEO, Rex Tillerson, received “compensation valued at $ 3 3 m last year, (2 0 1 4 ), up 1 8 % from 2 8 m given in 2 0 1 3 ” (Chen 2 0 1 5 ). In a massive transfer of wealth to one family, the Waltons, who rule over the Wal-Mart Empire, are worth $ 1 4 9 bn (Forbes 2 0 1 5 ). At the same time, Wal-Mart workers, selling goods manufactured through semi-slave wages, struggle to get $ 1 0 an hour, while Dunkin Donuts CEO Nigel Travis berated the suggested minimum hourly wage increase for New York fast food workers to $ 1 5 , calling it “absolutely outrageous” (McLaughin 2 0 1 5 ); his own salary is $ 4 ,8 8 9 an hour (Best 2 0 1 5 ). Across the globe, children and workers slave in mines in Africa to produce minerals needed for our convenient use of computer-based technologies, which then passes onto workers who labour under horrific factory conditions, for example in China. In contrast, the CEO of Apple, Tim Cook, in 2 0 1 4 , received payment and stock value of over $ 1 0 0 m (Colt 2 0 1 5 ). The CEO’s of Viacom, Starbucks and Disney respectively received $ 4 4 .3 m, $ 2 1 .5 m and $ 4 6 .5 m.(Colt 2 0 1 5 ). With 1 % accruing 9 9 % of global wealth in a system that rewards obnoxious and egotistical CEO’s and rogue companies with grossly inflated incomes and subsidies, while abandoning everyday workers to poverty, the logical outcome is a global slave state, or, more likely, a revolution. Actually, the revolution-evolution is already upon us. We are already seeing massive investment and extraordinary innovation in renewable energy across the world. Germany has set a stunning example as the world’s first major renewable energy economy. In 2 0 1 4 , it set a new record, generating 7 4 percent of its power needs from renewable energy (Kroh 2 0 1 4 ). At the UN Climate Change Summit in September 2 0 1 4 , UN Secretary-General Ban Ki-moon received commitments from more than a hundred countries to undertake climate action. The Congo and Uganda committed to restoring thirty million hectares of damaged forest, and Iceland and Costa Rica committed to being entirely fossil-fuel-free economies. Most countries are now setting ambitious goals that invest in renewables, cap the use of fossil fuels, and restore wilderness areas that act as carbon sinks, such as forests (Wills 2 0 1 4 ). Demonstrating the complete viability of renewables, Denmark, through its governmentbacked offshore wind farms, can now generate 1 4 0 % of its electricity needs (Nelsen 2 0 1 5 ). In our fast changing world, it is clear we have to dovetail economic strategies and social justice issues into the extreme imperative of maintaining a biosphere that can support life. This means we have an unprecedented opportunity to revolutionize our world at systemic levels. There is no easy way of doing this without challenging our ways of III. Enlightenment is the Intimacy of All Things 71 thinking and living, including the underlying causes of social inequity, which in part are generated through the prejudice, oppression and exploitation of a separating consciousness shaped by greed and delusion. Meeting our climate crisis presents us with new possibilities, and a very obvious choice. Either we change our ways exceedingly fast, or we set the course of unmitigated suffering for generations to come; hurtling them, and most all life forms, toward extreme conflict, an unmerciful scramble for resources, and likely mass extinction; all of which is entirely driven by our human activity. To avoid that outcome, we have to appreciate that environmental, social, political, and economic systems are profoundly interconnected. Buddhism teaches that in reality the boundaries we construct are false. This understanding revolutionizes everything because we finally understand that the root of our human ills is the human mind, its delusions, and its projections. While the mind is the source of our problem, it is also, as the Buddha pointed out, the source of our personal and collective redemption. A mind purified from the shadows of its own misconceptions is capable of insight, wisdom, compassion and quantum leaps of evolutionary thought and action. All of which can be applied at systemic level. In spite of humanity’s tormented past, our deeper reality is a seamless world, divided only by the human propensity for delusion, fear and greed. The veils can part from such an afflicted history, when we allow ourselves to touch into the truth the Buddha spoke of saying vimuttisarasabbe d hamma, “Freedom is the essence of every circumstance” (Nyanaponika Thera & Bhikkhu Bodhi 1 9 9 9 , 2 5 1 ). We are not just the assets we have, the job we do, the country we live in, or the color of our skin. Our human spirit will ultimately revolt against injustice and inequity, whether for others or ourselves, because in truth we are part of one another. And so the threat to our collective survival offers the chance to move forward in collaborative ways. The belching of carbon into our biosphere knows no boundaries, and so solutions have to go beyond geographic and nation state borders, in order to forge global alliances and necessary action. First, we have to keep carbon, nitrous oxide and methane gases in the ground by ending fossil fuel extraction, including more extreme forms of fracking, tar sands, mountain top removal, deep mining, and drilling in sensitive areas such as the Arctic. We have to stop corporate tax breaks and billions of dollars of government subsidies to the fossil fuel industry. Second, we have to sequester the remaining carbon through legislation of an international carbon tax, alongside divestment from fossil fuels at institutional level. We need massive investment in the restoration of forests, the ocean, and the planting of further forests and crops, like hemp, that can absorb carbon while being environmentally safe for building, clothes, and the replacement of plastics. Third, we need massive investment in, and education about, renewable sources of energy at local and national levels, and an extensive overhaul and investment in renewable based public transport, making rapid transport systems viable and user friendly. At individual and community 72 THANISSARA levels, we need to explore ways to shift to renewable energy, while recycling materials and reducing waste. Fourth, one of the most powerful things we can do, right now, is to move toward a plant-based diet, as methane emissions from livestock contribute 3 5 % of the total anthropogenic methane emissions (Food and Agriculture Organization of the United Nations 2 0 1 5 ). As communities, we can set up food growing cooperatives that support local employment and healthy food. The future belongs not to waste lands of burnt and tortured landscapes, or a return to feudalistic servitude. In the midst of devastation and destruction, as we negotiate “the sixth extinction” (Kolbert 2 0 1 4 ), the future is already emerging. It is in the shape of our awakening awareness regarding the nature of reality; the immutable nature of consciousness, matter, and energy, is being mirrored in collaborative, interconnected ways of working. As centralized systems implode, we are already moving within smaller self-empowered processes, where we can access global information, and are free to create, love and share in ways that seek to express the truth of our deeper spirit and aspiration to align in correlation with the truth of interdependence. In his latest book, Rifkin says: “Markets are beginning to give way to networks, ownership is becoming less important than access, the pursuit of self-interest is being tempered by the pull of collaborative interests, and the traditional dream of rags to riches is being supplanted by a new dream of a sustainable quality of life … While the capitalist market is based on self-interest and driven by material gain, the Commons is motivated by collaborative interests and driven by a deep desire to connect with others and share. If the former promotes property rights, caveat emptor, and the search for autonomy, the latter advances open-source innovation, transparency, and the search for community” (Rifkin 2 0 1 4 , 1 8 -1 9 ). At the end of the day, we humans are only here for a finger snap. Our empires and attempt to hoard up possessions will inevitably be defeated by the shifting sands of time. Whether we manage to turn our dramatic global crisis into a different kind of dream, one that is driven by deep desire to connect with others and share, or whether we fall under the weight of the dying dinosaur of our capitalist system, is yet to be seen. But what it clear, is that a tiny window of opportunity is still open. Let us not fall back to sleep, instead, let us wake up and pick up the challenge for the sake of those to come. Together, we can bend the course of history. “It seems impossible, until it is done”. –Nelson Mandela III. Enlightenment is the Intimacy of All Things 73 Bibliography Anon. 2 0 1 4 b. 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Indigenous Elders and Medicine Peoples Council Statement on Fukushima. http<http://www.indigenousaction. org/indigenous-elders-and-medicine-peoples-council-statement-on-fukushima/>. Accessed 1 7 July 2 0 1 5 . Klein, Naomi. 2 0 1 4 . This Changes Everything: Capitalism vs. The Climate. New York: Simon and Schuster. III. Enlightenment is the Intimacy of All Things 75 Kolbert, Elizabeth. 2 0 1 4 . The Sixth Extinction: An Unnatural History. New York: Henry Holt & Company. Kornfield, Jack. 1 9 9 3 . A Path With Heart. Bantam Books. Kroh, Kiley. 2 0 1 4 . Germany Sets New Record, Generating 7 4 Percent Of Power Needs from Renewable Energy. Climate Progress. http<http://thinkprogress.org/cli mate/2 0 1 4 /0 5 /1 3 /3 4 3 6 9 2 3 /germany-energy-records/>. Accessed 2 5 July 2 0 1 5 . Kroll, Andy. 2 0 1 4 . Triumph of the Drill. Taxpayers for Common Sense. http<http://www.taxpayer.net/media-center/article/triumph-of-the-drill>. Accessed 2 3 July 2 0 1 4 . Libcom.org. 2 0 1 4 . The poetry and brief life of a Foxconn worker: Xu Lizhi (1 9 9 0 -2 0 1 4 ). https://libcom.org/blog/xulizhi-foxconn-suicide-poetry. Accessed 1 5 July 2 0 1 5 . MahaBoowaAjahn. 1 9 9 6 . To The Last Breath. http<http://www.accesstoinsight. org/lib/thai/boowa/tolastbr.html# fnt-e1 9 >. Accessed July 1 8 , 2 0 1 5 MahaBoowaAjahn. 2 0 1 2 . Arahattamagga - Arahattaphala. Lexington: Forest Dhamma Books. Mason, Paul. 2 0 1 4 . Thomas Piketty’s Capital: everything you need to know about the surprise bestseller. The Guard ian. http<http://www.theguardian.com/books /2 0 1 4 /apr/2 8 /thomas-piketty-capital-surprise-bestseller>. Accessed 2 1 July 2 0 1 5 . McLaughin, Kelly. 2 0 1 5 Dunkin’ CEO says raising minimum wage to $ 1 5 -perhour is absolutely outrageous. Daily Mail. http<http://www.dailymail.co.uk/ news/article-3 1 7 3 6 9 1 /Dunkin-CEO-Nigel-Travis-says-1 5 -hour-minimum-wage-abso lutely-outrageous-lives-mansion-makes-1 0 million-year.html>. Accessed 2 6 July 2 0 1 5 McMurtry, John. 1 9 9 9 . The Cancer Stage of Capitalism. London: Pluto Press. 1 4 4 -1 4 6 . MunindoAjahn. 2 0 0 0 . The Dhammapad a. River Publications. MunindoAjahn. 2 0 0 0 . The Dhammapad a. Belsay: UK River Publications. Naht Hanh. 2 0 1 5 . Quoted by Jerome Freedman. We are Here to Awaken from the Illusion of Our Separateness. Mountain Sangha. <http://mountainsan gha.org/we-are-here-to-awaken-from-the-illusion-of-our-separateness/>. Accessed 2 2 July 2 0 1 5 . Nelsen, Arthur. 2 0 1 5 . Wind Power Generates 1 4 0 % of Denmark’s Electrical Demands. The Guard ian. http<http://www.theguardian.com/environment/2015 /jul/ 10/denmark-wind-windfarm-power-exceed-electricity-demand>. Accessed 26 July 2015. Nyanaponika Thera & Bodhi Bhikkhu. 1 9 9 9 . Numerical Discourses of the Bud d ha, AN 1 0 .5 8 . Maryland: Altamira Press. Olivier, Jos et al. 2014. Trends in Global CO2 Emissions. The Emissions Database for Global Atmospheric Research. http<http://edgar.jrc.ec.europa.eu/ news_docs/pbl2 0 1 3 -trends-in-global-co2 -emissions-2 0 1 3 -report-1 1 4 8 .pdf>. Accessed 8 July 2 0 1 5 . Oxfam Issue Briefing. 2 0 1 5 . Wealth: Having It All and Wanting More. Oxfam. http<https://www.oxfam.org/sites/www.oxfam.org/files/file_ attachments/ib-wealthhaving-all-wanting-more-1 9 0 1 1 5 -en.pdf>. Accessed 2 1 July 2 0 1 5 . Piketty, Thomas. 2 0 1 4 . Capital in the Twenty-First Century. Cambridge, Mass.: Belknap Press. Piketty, Thomas. 2 0 1 5 . Thomas Piketty: ‘Germany Has Never Repaid its Debts. It Has No Right to Lecture Greece’. Trans. Gavin Schalliol. The Wire. http<http://thewire.in/2 0 1 5 /0 7 /0 8 /thomas-piketty-germany-has-never-repaid-itsdebts-it-has-no-right-to-lecture-greece-5 8 5 1 />. Accessed 2 3 July 2 0 1 5 . Planck, Max. 1 9 4 4 . Das Wesen der Materie (The Nature of Matter), speech at Florence, Italy. (from ArchivzurGeschichte der Max-Planck-Gesellschaft, Abt. Va, Rep. 1 1 Planck, Nr. 1 7 9 7 ). 76 THANISSARA Pope Francis. 2 0 1 5 . Encyclical Letter Laudato Si’. Vatican Archive. http:// w2 .vatican.va/content/francesco/en/encyclicals/documents/papafrancesco_ 2 0 1 5 0 5 2 4 _ enciclica-laudato-si.html. Accessed 7 July 2 0 1 5 . Poulsen, Frank. 2 0 1 2 . Children of the Congo who risk their lives to supply our mobile phones. The Guard ian. http<http://www.theguardian.com/sustainablebusiness/blog/congo-child-labour-mobile-minerals>. Accessed 2 0 July 2 0 1 5 . Radford, Tim. 2 0 1 4 . Satellite mapping shows ice caps’ faster melt rate. Climate News Network. http<http://www.climatenewsnetwork.net/satellite-mapping-showsice-caps-faster-melt-rate/>. Accessed 7 July 2 0 1 5 . Rediker, Marcus. 2 0 0 7 . The Slave Ship: A Human History. New York: Viking. Rhys Davids, Thomas and William Stede. 1 9 2 1 . The Pali Text Society’s PaliEnglish Dictionary. Chipstead: Pali Text Society. Richardson, John. 2 0 1 5 . When the End of Human Civilization is Your Day Job. Esquire. http<http://www.esquire.com/news-politics/a3 6 2 2 8 /ballad-of-the-sad-clima tologists-0 8 1 5 /# comments>. Accessed 2 1 July 2 0 1 5 . Rifkin, Jeremy. 2 0 1 4 . The Zero Marginal Cost Society: The Internet of Things, The Collaborative Commons, And The Eclipse of Capitalism. New York: Palgrave Macmillan. Sayer, Derek. 1 9 8 7 . The Violence of Abstraction: The Analytic Found ations of Historical Materialism. Oxford: Basil Blackwell. Schrodinger, Erwin. 2 0 0 2 . In M. Thomas (Ed.), Einstein and Bud d ha, ed. M. Thomas. Berkeley: Ulysses Press. Thanissara. 2 0 1 4 . The Heart of the Bitter Almond Hed ge Sutra. Charleston: CreateSpace Independent Publishing Platform. Thanissara. 2 0 1 5 . Time to Stand Up. Berkeley: North Atlantic Books. Unsworth, Barry. 1 9 9 3 . Sacred Hunger. New York: W. W. Norton & Company. Weisman, Jonathan. 2 0 1 5 . Trans-Pacific Partnership Seen as Door for Foreign Suits Against U.S. International New York Times. http<http://www.nytimes. com/2 0 1 5 /0 3 /2 6 /business/trans-pacific-partnership-seen-as-door-for-foreign-suitsagainst-us.html?_ r=0 >. Accessed 7 July 2 0 1 5 . Wertheimer, Fred. 2 0 1 4 . A Call to Arms. Huffington Post. http<http://www.huf fingtonpost.com/fred-wertheimer/a-call-to-arms_ 1 _ b_ 6 1 8 6 2 7 2 .html>. Accessed 2 1 July 2 0 1 4 . Wills Amanda. 2 0 1 4 . UN Climate Summit: Who’s Promised What. Mashable. http<http://mashable.com/2014/09/23/un-climate-summit-country-promises-map/>. Accessed 2 6 July 2 0 1 5 . SECTION 2 PROTECTION OF THE ENVIRONMENT IN SUPRANATIONAL LAW C H A P T E R IV HUMAN RIGHTS AND THE ENVIRONMENT IN THE DYNAMICS OF INTERNATIONAL LAW: PAST, PRESENT AND FUTURE Elena Carpanelli SUMMARY: 1 . Introduction. –2 . The right to a healthy environment as an autonomous right in international law. –2 .1 . Recognition of an autonomous right to a healthy environment in binding and non-binding instruments. –2 .2 . The right to a healthy environment in regional case law. –2 .3 . Conceptual and practical issues relating to the recognition of an autonomous right to a healthy environment. –3 . Protecting the environment by ‘greening’ existing human rights. –4 . The ‘proceduralization of environmental rights’. –5 . Current issues, future challenges and possible paths ahead. –6 . Concluding remarks. 1 . Introd uction The close relationship between the environment and human rights has received increased attention since the early seventies1 , when States participating in the United Nations Conference on Human Environment declared that “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears the solemn responsibility to protect and improve the environment for present and future generations” (Stockholm Declaration, Principle 1 )2 . This statement is based on the widely accepted assumption that the effective protection of the environment can only be reached by enhancing Many scholars have analysed this relationship. See, inter alia, Shelton (1 9 9 1 ), Cançado Trindade (1 9 9 3 ), Déjeant-Pons (1 9 9 3 ), Boyle and Anderson (1 9 9 6 ), Pitea (2 0 0 9 ), Boer (2 0 1 5 ), Grear and Kotzé (2 0 1 8 ), Atapattu and Shapper (2 0 1 9 ), May and Daly (2 0 1 9 ), Turner at al. (2 0 1 9 ). 2 Declaration of the United Nations Conference on the Human Environment, in Report of the Conference on the Human Environment (Stockholm, 5 -1 6 June 1 9 7 2 ), UN Doc. A/CONF.4 8 /1 4 /Rev.1 (1 9 7 3 ), Chapter I. On the Stockholm Declaration and, in particular, on its Principle 1 see, inter alia, Sohn (1 9 7 3 , 4 5 1 ff). 1 80 ELENA CARPANELLI the exercise of certain human rights and, vice versa, the protection of the environment represents a necessary pre-condition for the protection of a number of human rights3 . Judge Weeramantry, in his separate opinion on the Gabcikovo-Nagymaros Project case, stressed: “environmental protection is ... a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself”4 . Strikingly, both the 1 9 9 2 Rio Declaration on Environment and Development5 and, more recently, the 2 0 1 2 Rio+2 0 outcome document “The Future We Want”6 do not replicate a statement similar to the one contained in the Stockholm Declaration7 . The 2 0 1 5 Paris Agreement on climate change8 contained instead in its Preamble a statement that reads as follows: “Parties should, when taking action to address climate change respect, promote and consider their respective obligations on human rights, the right to health, the right of indigenous people, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity”. Yet, as has been noted, the lack of any other references in the text of the agreement, as well as the choice of the language (such as the use of “should” rather than “shall”), deprive such a recognition of any meaningful significance9 . As to the strict interdependence between human rights and environmental protection see Shelton (1 9 9 1 , 1 3 8 ). This does not exclude that conflicts between environmental protection and human rights may arise in specific circumstances (for instance, when the protection of the environment in practice limits the exercise of the right to property). See Shelton (2 0 1 2 ), Petersmann (2 0 1 4 ) and Dupuy and Viñuales (2 0 1 5 , 3 3 1 ff). 4 Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Rep. 1 9 9 7 , p. 7 , Separate Opinion of Vice-President Weeramantry, p. 8 8 . 5 Principle 1 of the Rio Declaration on Environment and Development only states that “human rights are the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”. See Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3 -1 4 June 1 9 9 2 ), UN Doc. A/CONF.1 5 1 /2 6 (Vol. I) (1 9 9 2 ), Annex I. 6 Resolution I, “The Future We Want”, adopted on 2 2 June 2 0 1 2 , contained in Report of the United Nations Conference on Sustainable Development (Rio de Janeiro, 2 0 2 2 June 2 0 1 2 ), UN Doc. A/CONF.2 1 6 /1 6 (2 0 1 2 ), p. 1 ff. 7 Several references to human rights are instead contained in the 2 0 3 0 Agenda. See United Nations General Assembly, Resolution 7 0 /1 , adopted on 2 5 September 2 0 1 5 , Transforming Our World: The 2 0 3 0 Agenda for Sustainable Development, UN Doc. A/RES/7 0 /1 of 2 1 October 2 0 1 5 . For an overview see Winkler and Williams (2 0 1 8 ). 8 Adopted on 1 2 December 2 0 1 5 at the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change. It entered into force on 4 November 2 0 1 6 . 9 Boyle (2 0 1 8 , 7 6 9 ff.). 3 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 81 That notwithstanding, lawmakers, institutions and courts have –at the international, regional and domestic levels –growingly acknowledged the close relationship between human rights and the environment. This acknowledgment has encompassed both recognition of a new right to a healthy environment1 0 in national constitutions (Boyd 2 0 1 2 ) and regional human rights agreements (see infra section 2 ) and increasing jurisprudential attention to the environmental dimension of existing human rights, such as the right to life or to the enjoyment of private life or property (socalled ‘greening’ of existing human rights law) (Boyle 2 0 1 2 , 6 1 4 and Boyle 2 0 0 9 ) (see infra section 3 ). Furthermore, international agreements explicitly provide for or have been interpreted to guarantee certain procedural rights applicable to environmental issues, such as the right to access environmental information, to take part in environmental decision-making processes and to obtain redress for environmental harm (see, inter alia, Razzaque 2 0 1 0 , 2 8 4 -3 0 0 ) –this is the so-called ‘proceduralization of environmental rights’ (Francioni 2 0 1 0 , 4 2 ) (infra section 4 ). Against this background, the existence of a close relationship between human rights and the environment is now generally regarded as a fait accompli. However, its legal contours, scope and significance are still tainted by a considerable degree of uncertainty1 1 . The need for further clarity in this respect has been acknowledged in practice. For instance, as late as 2 0 1 4 , within the context of the work of the International Law Commission on protection of the environment in relation to armed conflicts, it was suggested that it would be valuable to undertake a substantive analysis of “which human rights are linked to the environment and which of those apply in relation to armed conflicts”1 2 . The uncertainty surrounding the exact terms of the relationship between human rights and the environment also seems confirmed by the work of UN Human Rights Council’s special procedures in this area. In 2 0 1 5 , the mandate of the UN Independent Expert on human rights obligations relating to enjoyment of a safe, clean, healthy and sustainable environment (hereinafter also ‘UN Independent Expert’), who was first appointed in 2 0 1 2 , was extended for a further three-year term as Special Rapporteur with the task, inter alia, of “continu[ing] to study … the human rights obligations relating to the enjoyment of a safe, clean, healthy For convenience, this chapter will generally use the expression ‘right to a healthy environment’. However, as partly stressed infra, legal instruments and literature employ a wide range of expressions in asserting or advocating an autonomous right to environmental protection. 11 As noted by Boyle, the relationship between human rights and environmental protection in international law is far from straightforward. See Boyle (2 0 1 2 , 6 1 3 ). 12 Emphasis added. International Law Commission (ILC), Report of the Sixty-Six Session (2 0 1 4 ), UN Doc. A/6 9 /1 0 , para. 2 1 1 . Among the States suggesting that human rights considerations should also be included in the work of the ILC see, inter alia, Italy (UN Doc. A/C.6 /6 9 /SR.2 2 , 1 1 November 2 0 1 4 , para. 5 3 ). 10 82 ELENA CARPANELLI and sustainable environment”1 3 and “identifying challenges and obstacles to the[ir] full realization … and protection gaps thereto …”1 4 . Whereas the Special Rapporteur submitted to the Human Rights Council in 2 0 1 8 a set of principles –the so-called “Framework principles on Human Rights and the Environment”1 5 –as result of the continuous study on the subject, on that same year the Human Rights Council extended the mandate of the Special Rapporteur for other three years, requesting him to “continue to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (…) [and] to work on identifying challenges and obstacles to the full realization of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment and protection gaps thereto, including in the context of sustainable development”1 6 . These evolutions, whilst denoting the need for further clarity concerning the relationship between human rights and the environment, illustrate some of the possible forums and means through which future developments in the field –both in terms of codification and progressive development of international law –might take place1 7 . Domestic judicial decisions might also play an important role in defining and clarifying the existing legal relationship between human rights and the environment1 8 . National courts, in fact, increasingly hear cases involving environmental harm or pollution. A leading case in this regard is the judgment issued by the Supreme Court of the Philippines on 3 0 July 1 9 9 3 in the case of Minors Oposa v. Secretary of the Department of Environmental and Natural Resources19 . The Supreme Court of the Philippines upheld the claim made by a group of minors (represented by their parents) that the issuance of timber licenses violated the right to a balanced and healthful ecology embodied in the national Constitution by Human Rights Council, Resolution 2 8 /1 1 on human rights and the environment, adopted without a vote on 2 6 March 2 0 1 5 , UN Doc. A/HRC/RES/2 8 /1 1 , 7 April 2 0 1 5 , para. 5 (a). 14 Ibid ., para. 5 (d). 15 Human Rights Council, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of safe, clean, healthy and sustainable environment, UN Doc. A/HRC/3 7 /5 9 of 2 4 January 2 0 1 8 , Annex. 16 Human Rights Council, Resolution 3 7 /8 on human rights and the environment, adopted without a vote on 2 2 March 2 0 1 8 , UN Doc. A/HRC/RES/3 7 /8 , 9 April 2 0 1 8 , para. 7 (a) and (d). 17 The actors and forums identified are not the only ones that might be involved. In this respect, noteworthy is the potential role that several other international actors could play. On the role of the European Union in this respect see, for instance, Morgera (2 0 1 4 ). 18 See International Law Commission, Third Report on Identification of Customary International Law by Micheal Wood, Special Rapporteur, UN Doc. A/CN.4 /6 8 2 , 2 7 March 2 0 1 5 , p. 4 2 : “decision of national courts may play a dual role in relation to customary international law: not only as State practice, but also as means for the determination of rules of international customary law”. 19 3 3 ILM 1 7 3 (1 9 9 4 ). For a comment on this decision see, inter alia, Scovazzi (1 9 9 5 ). 13 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 83 contributing to deforestation. The Supreme Court also recognized the principle of intergenerational responsibility by finding that the petitioners could file a class action for others of their generations and for future generations2 0 . On 2 4 June 2 0 1 5 , The Hague District Court issued another important decision in the Urgend a v. Kingd om of the Netherland s case, in which human rights considerations were taken into account in order to establish the State’s failure to take sufficient actions to prevent climate change. This decision was upheld by the Hague Court of Appeals on 9 October 2 0 1 8 and by the Dutch Supreme Court on 2 0 December 2 0 1 9 2 1 . In light of the foregoing, the present chapter will retrace the main steps in the recognition of the close relationship between the environment and human rights before focusing on the role that UN special procedures and domestic judicial decisions may play in this regard. 2. The right to a healthy environment as an autonomous right in international law 2.1 Recognition of an autonomous right to a healthy environment in bind ing and non-bind ing instruments Until the early seventies, protection of the environment was not perceived as a primary concern worthy of international regulation. It is thus unsurprising that the main human rights instruments adopted before that time –namely, the Universal Declaration of Human Rights22 , the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’)23 and the two International Covenants on Civil and Political Rights (‘ICCPR’)24 and on Economic, Social and Cultural Rights (‘ICESCR’)25 –do not contain any explicit reference to protection of the environment. As previously stated, Principle 1 of the 1 9 7 2 Stockholm Declaration is commonly regarded as the first non-binding provision to have expressly upheld the interaction between human rights and the environment2 6 . Nevertheless, States have subsequently been reluctant to explicitly uphold ‘environmental rights’ and, in particular, an autonomous right to a healthy environment in global binding agreements. On the concept of intergenerational responsibility see, inter alia, Bifulco and D’Aloia (2 0 0 8 ). 21 Urgend a Found ation v. Kingd om of the Netherland s (Ministry of Infrastructure and the Environment), case no. C/0 9 /4 5 6 6 8 9 /HA ZA 1 3 -1 3 9 6 . For a comment on the Urgend a case see Scovazzi (2 0 1 9 ). 22 United Nations General Assembly Resolution 2 1 7 A (III) of 1 0 December 1 9 4 8 . 23 Rome, 4 November 1 9 5 0 ; it entered into force on 3 September 1 9 5 3 . 24 New York, 16 December 1966; it entered into force on 23 March 1978 (999 UNTS 171). 25 New York, 16 December 1966, it entered into force on 3 January 1973 (993 UNTS 3). 26 However, as noted by Sohn, “it would have been an important step forward if the right to an adequate environment were put in the forefront of the statement of principles, thus removing the lingering doubts about its existence”. See Sohn (1 9 7 3 , 4 5 5 ). 20 84 ELENA CARPANELLI Despite the lack of a universal instrument explicitly setting out a right to a healthy environment27 , many States have included such a right in their national constitutions2 8 . As highlighted by the UN Independent Expert in the 2 0 1 5 Compilation of Good Practices, the last few decades have indeed witnessed a “proliferation of constitutional rights to a healthy environment”2 9 to the point that, to date, more than ninety national constitutions have recognized some form of this right3 0 . This increasing enactment of provisions upholding the right to a healthy environment in States’ constitutions has been regarded as illustrating a broader phenomenon, which –under the name of ‘environmental constitutionalism’ –includes any effort to address environmental matters in some form at the constitutional level (May and Daly 2015, 56)31 . While this evolving trend is inherently domestic, it certainly might exert influence at the international level as evidence of consistent State practice. In this respect –to use Boyd’s words –recognition of the right to a healthy environment in national constitutions favors a “dynamic dialogue between international and national law” contributing to the evolution of the said right (Boyd 2012, 79)32 . The right to a healthy environment has also been recognized at the regional level. Article 2 4 of the African Charter on Human and Peoples’ Rights (hereinafter also ‘Banjul Charter’), for instance, provides that: “All peoples shall have the right to a general satisfactory environment favorable to their development”3 3 . There are, however, few global agreements that, although not upholding an autonomous right to a healthy environment, do contain an explicit reference to the protection of the environment. See, for instance, Article 2 4 (2 )(c) of the United Nations Convention on the Rights of the Child (adopted on 2 0 November 1 9 8 9 and entered into force on 2 September 1 9 9 0 , 1 5 7 7 UNTS 3 ). 28 See Boyd (2 0 1 2 ). For an analysis of the phenomenon from an international relations perspective see Gellers (2 0 1 5 ). 29 See Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Compilation of Good Practices, UN Doc. A/HRC/2 8 /6 1 , 3 February 2 0 1 5 , para. 7 3 . 30 Ibid . For instance, Article 4 5 of the 2 0 1 4 Constitution of Tunisia –to mention one of the most recent examples –states that: “L'État garantit le droit à un environnement sain et équilibré et contribue à la sécurité du climat”. 31 See, more generally, Gellers (2 0 1 7 ). 32 The recognition of the right to a healthy environment in national constitutions may also impact on the hierarchy between environment protection and other human rights. See, e.g., Shelton (2 0 1 2 , 2 3 1 ), according to whom the recognition of this right at the constitutional level, especially if shaped in justiciable terms, “elevates it in the legal hierarchy” with respect to other internationally guaranteed human rights. 33 Emphasis added. On Article 2 4 of the African Charter on Human and Peoples’ Rights, including its subsequent interpretation, see, inter alia, Ebeku (2 0 0 3 ) and Van Der Linde and Louw (2 0 0 3 ). Within the African system of human rights protection Article 1 8 of the 2 0 0 3 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (adopted in Maputo on 1 1 July 2 0 0 3 and entered into force on 2 5 November 2 0 0 5 ) also recognizes the right to a healthy and sustainable environment. According to this provision: “... Women shall have the right to live in a healthy and sustainable environment”. 27 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 85 The African human rights system is not the only regional framework in which an autonomous right to a healthy environment has been expressly upheld. Article 1 1 (1 ) of the 1 9 8 8 Additional Protocol to the American Convention on Human Rights in the Area of Social, Cultural and Economic Rights (‘Protocol of San Salvador’) establishes that: “Everyone should have the right to live in a healthy and sustainable environment”3 4 . Unlike Article 2 4 of the Banjul Charter, which recognizes the right of all peoples to a generally satisfactory environment, Article 1 1 (1 ) explicitly upholds the ind ivid ual right to a healthy and sustainable environment. Furthermore, the inclusion of such a right in the Protocol of San Salvador clearly classifies it among economic, social and cultural rights, imposing on ratifying States a progressive implementation based on available resources3 5 . An obligation for States to guarantee the right of every person to live in a healthy environment is also provided for in the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (the so-called ‘Escazú Agreement’), which was adopted on 4 March 2 0 1 8 3 6 . Within the European context, the right to a healthy environment, although not included in the European system of human rights protection3 7 , has been acknowledged in the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘Aarhus Convention’)3 8 . Despite focusing on procedural rights, this Convention expressly stipulates in its Preamble that: “every person has the right to live in an environment adequate to his or her health and well-being”3 9 . Furthermore, Article 1 of the same instrument makes reference to the “right of every person of present and future generations to live in an environment adequate to his or her healthy being” (emphasis added). In this respect, by way of expressly referring to future generations, this instrument adds –to borrow Kiss’s words – “a new dimension to human rights: a temporal one” (Kiss 1 9 9 3 , 5 3 3 )4 0 . Emphasis added. It was adopted in San Salvador on 1 7 November 1 9 8 8 and entered into force on 1 6 November 1 9 9 9 , OAS Treaty Series no. 6 9 . 35 Ibid ., Article 1 . 36 Article 4 . For a comment on this instrument see Stec and Jendro (2 0 1 9 ). 37 Neither the ECHR nor the European Social Charter (Turin, 1 8 October 1 9 6 1 ; revised in Strasbourg, 6 May 1 9 9 6 ) contains any reference to the protection of the environment. There have been, however, proposals to include the right to a healthy environment in the text of the ECHR. See, e.g., Van Dyke (1 9 9 4 ). 38 It was adopted on 2 5 June 1 9 9 8 and entered into force on 3 0 October 2 0 0 1 , 2 1 6 1 UNTS 4 4 7 . 39 See Council of Europe, Manual on Human Rights and the Environment, 2 nd ed., 2 0 1 2 , p. 1 2 . 40 The author uses the expression quoted in relation to the reference to present and future generations contained in the Stockholm Declaration. Generally speaking, however, according to Kiss the right to protection of the environment “brings with it new perspectives to human rights by introducing the interests of future generations” (ibid ., 5 5 9 ). On the rights of future generations see also Vasak (2 0 0 1 ) and Westra (2 0 0 6 ). 34 86 ELENA CARPANELLI However, while the provisions of the Aarhus Convention noted above seem to imply the existence of a self-standing substantive right to a healthy environment, unlike the Escazú Agreement, they do not bind States to any corresponding obligations. At the regional level, the right to a healthy environment has also been upheld in the Arab Charter on Human Rights,4 1 whose Article 3 8 states: “Every person has the right to an adequate standard of living for himself and his family, which ensures their well-being and a decent life, including food, clothing, housing, services and the right to a healthy environment...” (emphasis added). In parallel to its acknowledgment in binding provisions of a national and regional character, the right to a healthy environment has also been upheld in non-binding global instruments. For instance, the 1 9 9 4 Report of the Special Rapporteur on human rights and the environment, Fatma Zohra Ksentini, included a set of Draft Principles stating that: “all persons have the right to a secure, healthy and ecologically sound environment”4 2 . The Commission on Human Rights, however, never adopted the Draft Principles. Both the Commission on Human Rights and the Human Rights Council have, however, recognized the “right of every person and all peoples to a healthy environment” in their resolutions4 3 . The recognition of a right to a healthy environment is also contained in the draft Global Pact for the Environment, adopted by a group of experts in Paris on 2 4 June 2 0 1 7 . Article 1 of the Draft Pact states that: “Every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment”. Following the presentation of the Pact made by France at the United Nationas General Assembly in December 2 0 1 7 , on 1 0 May 2 0 1 8 the Assembly initiated a formal discussion on the necessity and fea- It was adopted on 2 2 May 2 0 0 4 and entered into force on 1 5 March 2 0 0 8 . UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Special Rapporteur Fatma Zohra Ksentini, “Human Rights and the Environment” (Final Report), UN Doc. E/CN.4 /Sub.2 /1 9 9 4 /9 , 6 July 1 9 9 4 , at 2 . On the Draft Principles see, inter alia, Popovi (1 9 9 6 ). 43 Emphasis added. See, for instance, Commission on Human Rights, Resolution 2 0 0 3 /6 3 of 2 4 April 2 0 0 3 , Promotion of a democratic and equitable international order, para. 4 (1 ) and Human Rights Council, Resolution 8 /5 of 1 8 June 2 0 0 8 , Promotion of a democratic and equitable international order, para. 3 (m). The UN Declaration on the Rights of Indigenous Peoples (adopted on 1 3 September 2 0 0 7 by General Assembly Resolution 6 1 /2 9 5 ) can also be enlisted among the non-binding instruments that have recognized a right to the environment. Article 2 9 of this Declaration states: “indigenous peoples have the right to the conservation and protection of the environment”. At the regional level, see also Association of Southeast Asian Nations, Human Rights Declaration, adopted in Phnom Penh on 1 8 November 2 0 1 2 , para. 2 8 (f) (“every person has ... [t]he right to a safe, clean and sustainable environment”). 41 42 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 87 sibility of the adoption of an international instrument to fill in the existing gaps in international environmental law4 4 . While the outcome of this process is unknown, the Pact may contribute in any case to upholdingthe existent relationship between the environment and human rights (Knox 2 0 1 9 ): should the Pact evolve into a treaty, the right to a healthy environment would have its first recognition in a universal binding instrument; should the process lead to a different outcome, the Pact would still have the potential to signal widespread acceptance of this environmental right. 2 .2 The right to a healthy environment in regional case law Both the African Commission on Human and Peoples’ Rights and the Court of Justice of the Economic Community of the West African States (‘ECOWAS’) have applied and, thus, clarified, the scope of Article 2 4 of the Banjul Charter. In the Ogoni case4 5 , the African Commission found that this provision imposes on contracting States not only the negative obligation to “desist from directly threatening the health and the environment of their citizens” but also the positive obligation to undertake “reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources”4 6 . Furthermore, according to the African Commission, procedural obligations –such as ordering or permitting independent scientific monitoring, undertaking environmental and social impact studies, providing information to and allowing participation of those communities affected by potential environmental harm –also stem from the above-noted provision4 7 . In terms of enforceability, it is noteworthy that in reaching similar conclusions the African Commission stressed that “environmental rights … are essential elements of human rights in Africa” and “there is no right in the African Charter that cannot be made effective”4 8 . Unlike the African Commission, the ECOWAS Court of Justice4 9 , in its judgment related to the SERAP v. Nigeria case, did not explicitly United Nations General Assembly, Resolution 7 2 /2 7 7 , Towards a Global Pact for the Environment, UN Doc. A/RES/7 2 /2 7 7 , 1 4 May 2 0 1 8 . 45 Communication 1 5 5 /9 6 , The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, 2 7 October 2 0 0 1 . For a comment see, inter alia, Shelton (2 0 0 2 ); Coomans (2 0 0 3 ); Pavoni (2 0 1 3 , 9 6 ff). 46 Ibid ., para. 5 2 . 47 Ibid ., para. 5 3 . 48 Ibid ., para. 6 8 . 49 On the role of this Court in the adjudication of human rights see, inter alia, Alter et al. (2 0 1 3 ) and Poli (2 0 1 4 ). 44 88 ELENA CARPANELLI infer procedural obligations from Article 2 4 of the Banjul Charter, but rather focused on the substantive obligations arising from this provision5 0 . According to the Court, Article 2 4 , jointly considered with Article 1 of the Banjul Charter, imposes on States both “an obligation of attitude and an obligation of result”5 1 . It follows that this provision requires States to take every measure to preserve the environment (obligation of attitude) and to ensure that, even when all legislative, administrative and other appropriate measures are in place, “vigilance and diligence are being applied and observed towards attaining concrete results” (obligation of result)5 2 . The African Court of Human and Peoples’ Rights also upheld the collective dimension of the right to a healthy environment in Article 2 4 of the Banjul Charter: according to the Court, “nothing prevents ... [this right] from being recognized, where necessary, specifically to the ethnic groups and communities that constitute the population of a State”5 3 . Whilst any further examination of the abovementioned decisions would go far beyond the scope of the present analysis, it suffices here to stress that, regardless of their potential shortcomings5 4 , these judgments represent important precedents in the recognition of an autonomous right to a healthy environment (Pineschi 2 0 1 4 , 1 3 1 ) and in the definition of its content and scope. An authoritative interpretation of the content and scope of the right to a healthy environment enshrined in Article 1 1 (1 ) of the Protocol of San Salvador had instead long been missing, due to the fact that Article 1 9 (6 ) of the said Protocol prevents the Inter-American Court of Human Rights (‘IACtHR’) from dealing with any individual petition related to the alleged violation of the said right5 5 . This provision was nonetheless quoted SERAP v. Fed eral Republic of Nigeria, judgment no. ECW/CCJ/JUD/1 8 /1 2 , 1 4 December 2 0 1 2 . For a comment see, inter alia, Pineschi (2 0 1 4 ). Although the Court had been asked to adjudicate the alleged violations of human rights protected in several human rights instruments (including the ICCPR and the ICESCR), it grounded its analysis on Article 2 4 of the Banjul Charter as the provision affording more effective protection to the rights allegedly violated (para. 9 2 ). 51 Ibid ., para. 1 0 0 . 52 Ibid ., para. 1 0 1 . 53 African Commission on Human and Peoples’ Rights v. Republic of Kenya, app. no. 0 0 6 /2 0 1 2 , 2 6 May 2 0 1 7 , para. 1 9 9 . 54 See, e.g., the lack of reference by the ECOWAS Court of Justice to the Ogoni decision issued by the African Commission. In this respect, see Pineschi (2 0 1 4 , 1 3 2 ). 55 In light of the above, it is to be considered ‘unfortunate’ that, following the agreement reached between them, Ecuador and Colombia consensually discontinued the proceedings started by the former against the latter before the International Court of Justice in the Aerial Herbicid e Spraying case. See Aerial Herbicid e Spraying (Ecuad or v. Colombia), order of 1 3 September 2 0 1 3 , ICJ Reports 2 0 1 3 , p. 2 7 8 . In its memorial, Ecuador alleged that Colombia’s aerial herbicide spraying of coca leaf plantations, also having trans50 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 89 in the Kawas Fernand ez v. Hond uras case, where the IACtHR highlighted the undeniable link between the protection of the environment and the enjoyment of other human rights5 6 . While the expectation that such obiter d ictum could “ouvrir les portes à des recours permettant de développer ce droit [right to a healthy environment]” (Rinaldi 2 0 0 9 , 6 9 7 ) had not been met immediately, it has found further ground in the IACtHR’s advisory opinion OC-2 3 /1 7 issued on 1 5 November 2 0 1 7 5 7 . By this opinion, the Court found that the right to a healthy environment, justiciable under Article 2 6 of the American Convention on Human Rights (relating to the progressive development of economic, social and cultural rights), is an autonomous right with both individual and collective dimensions, whose scope differs from environmental content arising from the protection of other human rights5 8 . The IACtHR quoted its 2 0 1 7 advisory opinion in the judgment of 6 February 2 0 2 0 in the Lhaka Honhat v. Argentina case, whereby it found the respondent State responsible for the breach, inter alia, of the right to a healthy environment5 9 . 2 .3 Conceptual and practical issues relating to the recognition of an autonomous right to a healthy environment The above illustrative analysis depicts the current legal landscape as far as an autonomous substantive right to a healthy environment is concerned whilst disclosing many conceptual and practical obstacles that seem to prevent its recognition as a self-standing human right (Pitea 2 0 0 9 , 1 3 5 ). There is nowadays a common understanding that the elaboration of a new substantive right to a healthy environment represents one of the approaches through which the relationship between human rights and boundary effects in Ecuador, had given rise to a violation of the Ecuadorians’ right to a healthy and decent environment enshrined in Article 1 1 (1 ) of the Protocol of San Salvador, to which both Colombia and Ecuador are parties (See Memorial of Ecuador of 2 8 April 2 0 0 9 , para. 9 .7 ). Whether the International Court of Justice would have dealt or not with the specific issue at stake (and, in particular, with the extraterritorial application of the recalled provision), the removal of the case from the Court’s docket has definitively ruled out the possibility of any clarifying indications deriving from the judgment. For a comment on the case see Rutledge (2 0 1 1 ). 56 IACtHR, Kawas Fernand ez v. Hond uras, 3 April 2 0 0 9 , Series C No. 1 9 6 , para. 1 4 8 . 57 The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity –Interpretation and Scope of Articles 4 (1 ) and 5 (1 ) of the American Convention on Human Rights), Advisory Opinion OC-2 3 /1 7 , Series A No. 2 3 . 58 Ibid ., para. 6 3 . For a comment, see, inter alia, Feria-Tinta and Milnes (2 0 1 8 ). 59 IACtHR, Caso Comunid ad es Ind ígenas Miembros De La Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina, 6 February 2 0 2 0 , Series C No. 4 0 0 , paras. 2 0 2 -2 0 9 . 90 ELENA CARPANELLI the environment has been acknowledged6 0 . Nevertheless, whether a universal autonomous right to a healthy environment has yet emerged –or is currently emerging –remains highly disputed in international law (Lewis 2 0 1 2 , 3 6 and Post 2 0 1 9 )6 1 . One could consider, for instance, that existing provisions embodying such a right at the national and regional level and the increasing number of non-binding instruments on this matter constitute sufficient evidence to support the claim that a human right to a healthy environment exists. However, the majority of commentators are unanimous in contending that, at least d e lege lata, no such universal autonomous right can be traced in the current corpus of international human rights law6 2 . This view is supported, inter alia, by the lack of a legally binding global agreement enshrining this right and it is further evidenced by the heterogeneous recognition of the right at national and regional levels. The consequent indeterminacy is first –but not only –definitional: what does ‘environment’ stand for?6 3 Does the use of different expressions such as ‘healthy’, ‘sustainable’ or ‘ecologically sound’ lead to distinct consequences in terms of corresponding legal obligations?6 4 Apart from definitional issues, the right to a healthy environment has been approached quite differently in a variety of contexts and, at times, even within the same system of human rights protection6 5 . Such differences raise issues concerning, inter alia, the nature of the related obligations (conduct or result?) and the identification of right-holders: is it a collective or individual right? Who is entitled to file a complaint for an alleged breach of this right? Do corresponding obligations arise also visà-vis future generations?6 6 The difficulties related to identification of the content and scope of the right to a healthy environment are strictly interlinked and run parallel Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Preliminary Report, UN Doc. A/HRC/2 2 /4 3 , 2 4 December 2 0 1 2 , para. 1 1 . See, for instance, Hajjar Leib (2 0 1 1 , 7 1 ). 61 See also: Rodriguez-Rivera (2 0 0 1 ); Fitzmaurice and Marshall (2 0 0 7 ); Merrils (2 0 0 8 ); Hannum et al. (2 0 1 1 ); Bratspies (2 0 1 5 ); Adinolfi (2 0 1 8 ); Knox and Pejan (2 0 1 8 ) 62 See, inter alia, Francioni (2 0 1 0 , 4 3 ). 63 A systemic interpretation would nonetheless make it possible to rely on the definition upheld by the International Court of Justice, pursuant to which: “the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn”. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1 9 9 6 , p. 2 2 6 , para. 2 9 . 64 Concerning the issue of indeterminacy in relation to the definition of what constitutes a satisfactory, decent or ecologically sound environment see, inter alia, Kiss (1 9 9 3 , 5 5 4 ) and Boyle (2 0 0 7 , 5 0 7 ). 65 See supra the Ogoni and Serap v. Nigeria cases. 66 Some of these questions have been raised, inter alia, by Postiglione (2 0 1 0 ). 60 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 91 to the scholarly debate over the classification of this right. While the classification of human rights into different ‘generations’ of rights is per se controversial, the traditional view according to which environmental rights and, in particular, the right to a healthy environment would fit among ‘third-generation’ or ‘solidarity’ rights6 7 –a category that appears by itself ‘uncertain’ in terms of enforceability, substance and entitlement6 8 –has been challenged by those who prefer to include environmental rights among economic, social and cultural rights (‘second generation’ rights) (see Boyle 2 0 1 2 , 6 3 3 ) or even refuse a clear-cut categorization of these rights (Boyle 2 0 0 9 ). The same conceptual difficulties have even led scholars to propose different legal constructs, such as the newcomer concept of ‘hybrid rights’ (Freedman 2 0 1 3 , 9 5 0 ). The nature and genesis of the human right to a healthy environment are also controversial. The view has been expressed, for instance, that this right could form part of those high-order norms falling within the notion of jus cogens (Kotzé 2 0 1 8 ). Moreover, whilst the majority links the existence of this right to its repeated recognition in international, regional and national instruments, others have advocated for a bottom-up approach, pursuant to which the human right to a healthy environment would emerge from people’s claims (Bratspies 2 0 1 7 , 2 7 3 ). Against this indeterminate background, the very necessity or usefulness of the adoption of a substantive self-standing right to a healthy environment has been challenged. In particular, some commentators have argued that recognition of such a right would give rise to potential overlaps and redundancy with existing human rights and international environmental norms69 . Further critiques have concerned the inappropriateness of human rights monitoring bodies to tackle environmental protection issues7 0 and the anthropocentric focus permeating any human rights-based approach to environmental matters7 1 . Conversely, other scholars postulate the necessity of upholding an autonomous right to a healthy environment. For instance, it has been argued that a similar recognition would represent the only available means through which to elevate environmental considerations to a level equal to that of other fundamental rights7 2 . See, inter alia, Vasak (2 0 0 4 , 1 9 ). See, ex multis, Donnelly (1 9 9 3 ). See also Alston (1 9 8 2 ). 69 See Hajjar Leib (2 0 1 1 , 9 3 ). See also Razzaque (2 0 1 0 b, 1 1 8 -1 1 9 ) and Francioni (2 0 1 0 , 5 4 ). According to the latter author, the indeterminacy inherent to the recognition of the right to a healthy environment makes it neither necessary nor useful. 70 See Kiss (1 9 9 3 , 5 5 6 ), who, however, contends that this criticism is not justified. According to this author, the right to conservation of the environment also entails the right to access effective judicial remedies in case of its alleged violation. 71 See, e.g., Boyle (1 9 9 6 , 4 9 ). On this topic see also Redgwell (1 9 9 6 ). 72 See, for instance, Shelton (1 9 9 1 , 1 3 3 ff) and Shelton (2 0 0 6 , 1 6 3 ). 67 68 92 ELENA CARPANELLI This debate notwithstanding, it is undeniable that the uncertainty surrounding the content of a right does not affect its recognition on the global level (Pitea 2 0 0 9 , 1 3 6 ). However, as stated earlier, to date there is no conclusive evidence to prove that the right to a healthy environment –although upheld in various regional and national instruments –has emerged as an autonomous right in international law. The very fact that the recommendation of the Special Rapporteur Ksentini to adopt “a set of norms consolidating the right to a satisfactory environment”7 3 has so far fallen on deaf ears might be considered as proof of States’ reluctance to acknowledge the existence of such an autonomous right. 3 . Protecting the environment by ‘greening’ existing human rights The abovementioned obstacles to the recognition of a self-standing autonomous right to a healthy environment have paved the way to integration of environmental considerations within the realm of existing human rights. In this connection, despite the lack of an explicit recognition of the right to a healthy environment, human rights treaties have been interpreted extensively so as to include substantive obligations related to the protection of the environment7 4 . While a detailed overview of the ‘environmental case law’ elaborated by judicial and quasi-judicial human rights monitoring bodies would go much beyond the scope of the present chapter7 5 , it suffices here to note a few of the main aspects underpinning this ‘greening’ process. A first element worth mentioning is that, even within the same dynamic interpretative approach, differences exist as to the manner in which environmental considerations have been dealt with by distinct human rights monitoring bodies. The European Committee of Social Rights, for instance, has interpreted Article 1 1 of the European Social Charter on the right to health as including a ‘right to a healthy environment’76 . Several substantive obligations –including the obligation to enact sufficiently comprehensive environmental legislation, take specific steps to prevent and reduce air pollution and establish appropriate supervisory mechanisms –would flow from this right7 7 . In particular, according to the European Committee, “… overcoming pollution is an objective that can only be achieved gradually. Nevertheless, States must strive to attain the ob- See UN Doc. E/CN.4 /Sub.2 /1 9 9 4 /9 , at 2 6 1 . As to the different approaches through which the relationship between environmental protection and human rights has been acknowledged see Shelton (2 0 0 6 , 1 3 0 ). 75 For a general overview see, inter alia, Boyle (2 0 0 7 ) and Shelton (2 0 1 1 , 2 6 9 ff). 76 Marangopolous Found ation for Human Rights v. Greece, decision of 6 December 2 0 0 6 , para. 1 9 5 . For a comment on this case see, inter alia, Trilsch (2 0 0 9 ). 77 Ibid ., para. 2 0 3 . 73 74 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 93 jective within a reasonable time, by showing measurable progress and making the best possible use of the resources at their disposal”7 8 . By means of the above reasoning, the European Committee’s approach seems to support the view that the right to a healthy environment may be derived from one or more existing human rights (such as, in the specific case, the right to health). This direct and explicit deduction of the right to a healthy environment from existing human rights stands, however, quite isolated in the international arena. For instance, the Committee on Economic, Social and Cultural Rights has been more cautious in explicitly deriving an entitlement to a healthy environment from the rights enshrined in ICESCR. In its General Comment no. 1 4 , the Committee found that the right to the highest attainable standard of health provided in Article 1 2 of ICESCR “…embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment”7 9 . It is noteworthy, however, that the Committee expressly infers –at least nominally –a corresponding ‘right to healthy natural and workplace environments’ from the duty to improve “all aspects of environmental and industrial hygiene” enshrined in Article 1 2 (2 )(b) of ICESCR8 0 . The Human Rights Committee and regional human rights courts8 1 have been even more reluctant to infer an autonomous human right to a healthy environment from existing human rights. The Human Rights Committee has derived environmental obligations from the right to life and the right to respect for private life. In its General Comment no. 3 6 on the right to life, the Committee recognized that the duty to protect life in Article 6 of the ICCPR also implies the obligations for State parties to Ibid ., para. 2 0 4 . Particularly noteworthy is also the European Committee’s reliance on internationally recognized environmental standards in assessing compliance with the obligations stemming from Article 1 1 of the Charter. 79 Emphasis added. General Comment no. 1 4 , The Right to the Highest Attainable Standard of Health (art. 1 2 ), UN Doc. E/C.1 2 /2 0 0 0 /4 of 1 1 August 2 0 0 0 , para. 1 5 . In terms of future developments, following the entrance into force in May 2 0 1 3 of the Optional Protocol to the ICESCR (adopted on 1 0 December 2 0 0 8 , UN Doc. A/RES/6 3 /1 1 7 ), individuals and groups can now bring complaints about the alleged violations of the rights enshrined in the Covenant before the Committee on Economic, Social and Cultural Rights. 80 Ibid . 81 The reference here and throughout this section is to the case law of the European Court of Human Rights and the Inter-American Court of Human Rights. The relevant practice under the African human rights system has indeed already been taken into account in the previous section, provided that the African Charter on Human and Peoples’ Rights recognizes a self-standing right to a healthy environment. 78 94 ELENA CARPANELLI take appropriate measures to address environmental degradation and to protect the environment against harm, pollution and climate change caused by public and private actors8 2 . In addition, the Committee found a violation of the rights to life and to respect for private and family life in the Portillo Cáceres v. Paraguay case, concerning environmental contamination caused by chemical products used by the agricultural industry8 3 . No reference was ever made to an autonomous right to a healthy environment. Both the European Court of Human Rights (‘ECtHR’) and the IACtHR have found that environmental harm might give rise to a breach, inter alia, of the right to life8 4 , the right to property8 5 or the right to respect for private and family life8 6 , without however deriving from these provisions a self-standing ‘right to a healthy environment’. In this respect, regional judicial adjudication seems to reflect a more clear-cut dichotomy between the efforts to recognize an autonomous right to a healthy environment, on the one hand, and identification of the environmental implications of existing human rights, on the other hand. This also stems from the already recalled IACtHR’s advisory opinion OC-2 3 /1 7 , where the Court, after recognizing the existence of an autonomous and justiciable human right to a healthy environment, contributed to the process of ‘greening’ of human rights, which had already characterized its previous case law. In accordance with the terms of the consultation submitted by Colombia, the Court focused especially on the environmental obligations arising from the rights to life and to personal integrity, whose environmental content, according to the Court, differs from that of the autonomous right to a healthy environment8 7 . As highlighted above, the process of incorporating an environmental dimension into existing human rights has concerned both ‘first-generation’ (civil and political) and ‘second-generation’ (economic, social and cultural) rights. In this respect, one could wonder whether, at least in terms of cor- Human Rights Committee, General Comment no. 3 6 , Article 6 : Right to Life, UN Doc. CCPR/C/GC/2 6 , 3 September 2 0 1 9 , paras. 2 6 and 6 2 . 83 Communication no. 2 7 5 1 /2 0 1 6 , Views adopted on 2 5 July 2 0 1 9 , UN Doc. CCPR/C/1 2 6 /D/2 7 5 1 /2 0 1 6 , 2 0 September 2 0 1 9 . 84 See, e.g., ECtHR [GC], Öneryild iz v. Turkey, app. no. 4 8 9 3 9 /9 9 , judgment of 3 0 November 2 0 0 4 , para. 1 1 8 . 85 See, e.g., IACtHR, Saramaka Peoples v. Suriname, Series C No. 1 7 2 , judgment of 2 8 November 2 0 0 7 , para. 1 5 8 ; Ind igenous Community of Yakye Axa v. Paraguay, Series C No. 1 2 5 , judgment of 1 7 June 2 0 0 5 , para. 1 4 3 . 86 See, e.g., ECtHR, Fad ayeva v. Russia, app. no. 5 5 7 2 3 /0 0 , judgment of 9 June 2 0 0 5 , para. 1 3 4 ; Taskin and others v. Turkey, app. no. 4 6 1 1 7 /9 9 , judgment of 1 0 November 2 0 0 4 , para. 1 2 6 ; López Ostra v. Spain, app. no. 1 6 7 9 8 /9 0 , judgment of 9 December 1 9 9 4 , para. 5 8 ; Cordella and others v. Italy, app. nos. 5 4 4 1 4 /1 3 and 5 4 2 6 4 /1 5 , judgment of 2 4 January 2 0 1 9 , para. 1 7 4 . 87 See again Advisory Opinion OC-2 3 /1 7 , para. 6 3 . 82 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 95 responding States’ obligations, the ‘greening’ of existing human rights might lead to further divergences based on the ‘typology’ of the rights involved. Pursuant to the traditional approach to generations of human rights, economic, social and cultural rights differ from civil and political rights by way of imposing on States only indirect legal obligations (Riedel et al. 2014, 13). The programmatic language included in Article 2 (1 ) of ICESCR, which refers to the States parties undertaking “to take steps … to the maximum of [their] available resources, with a view to achieving progressively the full realization of the rights recognized in the … Convention”, has supported such a view88 . However, the Committee on Economic, Social and Cultural Rights has found on several occasions that “every single Covenant right does … contain elements lending themselves to immediate implementation that must be honored by the States parties without delays or restrictions”89 . Under a broader and interrelated perspective, distinct approaches might also depend on the specific system of human rights protection in the context of which the process of extensive interpretation of existing human rights takes place. Apart from being inescapably linked to the specific legal framework whose application and interpretation they are entrusted with, distinct adjudicating and monitoring bodies might indeed bear different attitudes towards extensive interpretation of relevant human rights provisions. It is thus unsurprising that, for instance, the ‘environmental case law’ of the European and Inter-American Courts of Human Rights does show a few quantitative and qualitative differences (Pavoni 2 0 1 5 , 6 9 ). Whereas the IACtHR has so far been entrusted with a limited number of cases compared to its European counterpart, it has nevertheless showed a more progressive attitude towards a collective, rather than merely individualistic, approach to environmental rights (Francioni 2 0 1 0 , 5 1 ). That said, as previously remarked, even within the same human rights system, obligations of environmental protection have been inferred from different human rights provisions9 0 . For instance, the Human Rights Committee and the ECtHR have relied on different rights enshrined in the ICCPR and in the ECHR (e.g. right to life, right to respect for private and family life)9 1 to compel States’ authorities to, inter alia, regulate environmental risks9 2 , implement appropriate legislation9 3 and, more See Riedel et al. (2 0 1 4 , 1 2 ). Ibid ., p. 1 3 . 90 For instance, as to the conspicuous case lawx of the ECtHR see Council of Europe, Manual on Human Rights and the Environment. For a general overview see also Shelton (2 0 0 6 , 1 4 3 -1 6 3 ) and DeMerieux (2 0 0 1 ). 91 Environmental considerations have been taken into account by the ECtHR also with regard to the right to property embodied in Article 1 of Protocol 1 to the ECHR. See Council of Europe, Manual on Human Rights and the Environment, p. 6 2 ff. 92 See, e.g., Öneryild iz v. Turkey, para. 8 9 and Portillo Cáceres v. Paraguay. 93 Ibid ., para. 9 1 . 88 89 96 ELENA CARPANELLI generally, take all positive steps to safeguard the above-mentioned rights9 4 . As stressed by the ECtHR, this ‘multifaceted’ approach is the direct consequence of the fact that “neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such”9 5 . Regardless of the above, however, as noted by Boyle, “there is certainly evidence of convergence in environmental case law and a crossfertilization of ideas between the different human rights systems” (Boyle 2 0 1 2 , 6 1 4 ). For instance, in the Marangopolous Found ation for Human Rights v. Greece case, the European Committee of Social Rights expressly took into account the principles established in the case law of other human rights supervisory bodies when interpreting Article 1 1 of the European Social Charter9 6 . By way of further example, the Human Rights Committee, in the already recalled Views in the case Portillo Cáceres v. Paraguay, has made extensive reference to the “developments in other international tribunals that had recognized the existence of an undeniable link between the protection of the environment and the realization of human rights”9 7 . This cross-fertilization trend should certainly be welcomed, given that, as stressed by Pavoni, “at a time when environmentally related individual complaints filed before human rights courts and bodies are proliferating, increasing convergence in the pertinent jurisprudence …. is certainly desirable and in line with what has already occurred in respect of many other rights issues” (Pavoni 2 0 1 5 , 1 0 5 ). Whereas a development towards a dynamic and integrated approach in the field would be beneficial, so far no evolution in this sense has occurred. The expectation that such an approach might eventually be followed in the practice of the Kosovo Human Rights Advisory Panel, before which a case related to exposure to lead contamination in Mitrovica’s Rom camps had been brought9 8 , was not met. In fact, in spite of the fact that the Panel is entitled to apply a comprehensive body of international human rights law, which includes, inter alia, the Universal Declaration of Human Rights, the ECHR, the ICCPR and the ICESCR9 9 , See, e.g., ECtHR [GC], Guerra and others v. Italy, app. no. 1 1 6 /1 9 9 6 /7 3 5 /9 3 2 , judgment of 1 9 February 1 9 9 8 , para. 5 8 . 95 ECtHR, Kyratatos v. Greece, pp. 4 1 6 6 6 /9 8 , judgment of 2 2 May 2 0 0 3 , para. 5 2 . 96 See Marangopolous Found ation for Human Rights v. Greece, par. 1 9 6 . The European Committee refers specifically to the case law of the ECtHR, the IACtHR, the African Commission on Human and Peoples’ Rights, at the regional level, and the UN Committee on Economic, Social and Cultural Rights, at the global level. 97 See again Portillo Cáceres v. Paraguay, para. 7 .4 . 98 See N.M. and others v. UNMIK, case no. 2 6 /0 8 , lodged on 4 July 2 0 0 8 . 99 See United Nations Interim Administration Mission in Kosovo, Regulation no. 2 0 0 6 /1 2 , Doc. UNMIK/REG/2 0 0 6 /1 2 of 2 3 March 2 0 0 6 , at 1 (2 ). 94 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 97 in its opinion released on 2 6 February 2 0 1 6 , in which it found a violation by UNMIK of provisions contained in different international instruments, it did not develop an integrated approach capable of fostering convergence among environmental case laws of distinct human rights treaty monitoring bodies. All in all, the ‘greening process’ described above has filled a ‘normative lacuna’ by allowing individuals and, to a certain extent, groups of individuals to access monitoring and adjudicatory mechanisms and making governments accountable for their failure to regulate and control environmental degradation. Against the general and increasing trend towards convergence, the ‘greening process’ of existing human rights might further end up playing –d e lege ferend a –a pivotal role in contributing to and clarifying the definition and content of an emerging autonomous human right to a healthy environment. 4 . The ‘proced uralization of environmental rights’ The expression ‘proceduralization of environmental rights’ refers to “individual and social empowerment to participate in the deliberative process leading to environmental decisions and in activation of remedies against environmental harm” (Francioni 2 0 1 0 , 4 2 -4 3 ). Since the adoption of the Rio Declaration on the Environment and Development, procedural rights in environmental matters have become part of the corpus of binding and non-binding international environmental provisions1 0 0 . Principle 1 0 of the Rio Declaration expressly provides that “each individual shall have appropriate access to information concerning the environment that is held by public authorities, … and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”. The three procedural rights embodied in this provision (that is, access to environmental information, participation in decision-making and availability of remedies) have been subsequently included and further elaborated in a considerable number of environmental law instruments1 0 1 . The most important agreement in this respect is the Aarhus Convention, an instrument that, while regional in scope, is open to the participation of all UN Members1 0 2 . This Convention reinforces and further elaborates on For a study on the link between individual procedural rights and inter-State procedural duties in environmental matters see Ong (2 0 1 0 ). 101 For a list of instruments see, inter alia, Shelton (2 0 0 6 , 1 3 2 ff) and Razzaque (2 0 1 0 ). With regards to procedural environmental rights within the framework of the 2 0 1 2 Report “The Future We Want” see May and Daly (2 0 1 4 ). 102 See, inter alia, Pitea (2 0 1 3 , 2 1 2 ff). 100 98 ELENA CARPANELLI the three ‘procedural pillars’ already enlisted in Principle 1 0 of the Rio Declaration. Furthermore, Article 1 5 of the Convention expressly entitles individuals and NGOs to bring complaints before a Non-compliance Committee. As a result, a growing ‘environmental case law’ related to the application and the interpretation of the procedural rights enshrined in the Convention is now emerging and will likely continue to grow in the near future. In parallel to their recognition in environmental law instruments, the development of environmental procedural rights has also progressed within other branches of international law, especially human rights law. Procedural rights embodied in human rights instruments, such as the rights of freedom of expression, peaceful assembly and association and the right to a judicial remedy, have been interpreted to apply to environmental matters1 0 3 . While a complete list of all legal instruments and decisions of international and regional supervisory bodies upholding procedural environmental rights would again lie outside a mere overview of the current human rights approaches to environmental protection, it suffices here to highlight the fundamental aspects that appear relevant in assessing the current issues and future challenges posed by the relationship between human rights and the environment. First, as for substantive environmental rights, the case law of judicial and quasi-judicial human rights bodies, although showing an overall trend towards convergence, displays a number of qualitative and quantitative differences104 . Second, even within the same system of human rights protection, jurisprudential contradictions exist as to the way in which procedural environmental rights have been interpreted and applied1 0 5 . Third, only in some instances have human rights bodies been able to create what has been referred to as the ‘virtuous circle’ between procedural and substantive rights1 0 6 . This expression captures the establishment of an explicit connection “between the (largely substantive rights) that are most likely to suffer environmental harm, and the (largely procedural rights) whose implementation helps to ensure envronmental protection”1 0 7 . While further developments towards a widespread and uniform recognition of this interplay between procedural and sub- For a recollection of cases see, inter alia, Shelton (2 0 0 6 , 1 3 4 ff) and Cournil (2 0 1 6 ). For a deep analysis of the issue with respect to the case law of the ECtHR and the IACtHR see Pavoni (2 0 1 5 ). This author underlines the less conservative approach upheld by the IACtHR compared to its European counterpart. This conclusion is shared by Boyle (2 0 1 2 , 6 3 1 ). On the topic see also Peters (2 0 1 8 ). 105 See, for instance, the different approach adopted by the ECtHR in the cases Hatton and others v. United Kingd om (GC, app. no. 3 6 0 2 2 /9 7 , judgment of 8 July 2 0 0 3 ) and Taskin v. Turkey (app. no. 4 6 1 1 7 /9 9 , judgment of 1 0 November 2 0 0 4 ), as reported in Boyle (2 0 1 2 , 6 3 2 ). 106 UN Doc. A/HRC/2 2 /4 3 , para. 4 2 . 107 Ibid ., para. 4 0 . 103 104 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 99 stantive rights are certainly desirable, judicial practice has so far merely disclosed the start of an emerging process. These aspects all relate to the development of procedural environmental rights through human rights law and, in this respect, they share common traits with the process of ‘greening’ existing human rights analyzed in the previous section. However, it cannot be ignored that, unlike substantive environmental rights, procedural environmental rights have also found broad recognition in environmental law instruments. As a result, while substantive environmental human rights are still fledgling, procedural environmental rights have attained a higher level of maturity within the international legal framework (Ong 2 0 1 0 , 1 6 5 ). 5 . Current issues, future challenges and possible paths ahead As noted by legal scholars, of the main three approaches followed in acknowledging the close relationship existing between human rights and the environment –that is, “(1 ) broadening existing rights, (2 ) asserting substantive rights, [and] (3 ) asserting procedural environmental rights” (Chuffart and Viñuales 2 0 1 4 , 2 8 8 ) –the first and third have so far prevailed1 0 8 . The formulation of an autonomous self-standing right to a healthy environment, although asserted in a number of national constitutions and regional human rights instruments, has indeed met broad resistance, especially due to definitional uncertainties (Shelton 2 0 0 6 , 1 3 1 ). At the same time, however, reliance on existing human rights has showed several shortcomings. The case-by-case character inherent to the dynamic interpretation of existing human rights, although denoting some areas of convergence, might prove ill-suited to identify a uniform set of norms capable of accommodating current environmental problems. Similarly, the parallel development of different human rights approaches to environmental protection raises challenging issues related to their interaction. The ‘fragmented’ acknowledgment of the relationship existing between human rights and the environment, which has taken place in a multitude of forums and has been based on different legal texts, depicts indeed a ‘multifaceted’ scenario1 0 9 . It is thus no surprise that it was stressed that while “some aspects of the relationship between human rights and the environment are now firmly established [e.g. that environmental degradation can and does adversely affect the enjoyment of human rights] … the obligations that human rights law impos[es] regarding environmental protection are less clearly understood”1 1 0 . 108 109 110 See Chuffart and Viñuales (2 0 1 4 , 2 8 8 ). UN Doc. A/HRC/2 2 /4 3 , para. 3 9 . Ibid ., para 3 5 . 100 ELENA CARPANELLI Furthermore, there are pressing legal hurdles linked to the peculiar characteristics of environmental problems for which the current human rights approaches to environmental protection do not seem to provide a straightforward solution. They include, inter alia, the extraterritorial application of human rights norms faced with the threats posed by transboundary and global environmental harm and the concept of inter-generational responsibility. As far as the former aspect is concerned, it suffices here to recall the debate that has surrounded IACtHR’s advisory opinion OC-2 3 /1 7 , where the Court envisaged a new jurisdictional link that would allow applying the American Convention on Human Rights extraterritorially in environmental matters. According to the Court, a State has indeed obligations vis-à-vis individuals who suffer from environmental harm as a consequence of cross-border domestic activities under the State’s effective control, provided that a causal relationship exists between the polluting activities and environmental harm1 1 1 . While the Court’s attempt to systemize and solve a long-standing issue is praiseworthy, the lack of comprehensive indications on the new jurisdictional link and the vagueness of the same have been criticized (Berkes 2 0 1 8 )1 1 2 . In addition, the extensive interpretation of existing human rights to include environmental protection appears ill-suited to address environmental degradation anytime it does not directly affect the individual (Francioni 2 0 1 0 , 5 4 -5 5 and Dupuy and Viñuales 2 0 1 5 , 3 1 9 ff). Protection afforded to the environment through human rights instruments has indeed inevitably been based on a “personal-injury based approach to legal protection” (Dupuy and Viñuales 2 0 1 5 , 3 1 9 ). In the African and Inter-American contexts, where the existence of an interaction between environmental degradation and the impairment of a protected right has been applied more loosely, this lenient approach has concerned mainly specific communities (such as indigenous peoples)113 . Furthermore, even where collective claims are admissible, the existence of a close relationship between environmental degradation and the collective right at stake remains essential. Against the global reach of environmental values and threats (e.g. climate change), a similar approach has been labelled as counter-productive, as it would contribute to the “stagnation of international law” (Francioni 2 0 1 0 , 5 4 -5 5 ). In light of this lack of conceptual clarity and this scattered normative picture, it has been argued that the current human rights approaches to environmental protection can only represent a ‘provisional solution’1 1 4 that should not prevent efforts towards the elaboration of more appropriate regulatory responses. In this respect, several proposals have been put forward, including the express incorporation of a right to a healthy 111 112 113 114 See again Advisory Opinion OC-2 3 /1 7 , paras. 9 5 -1 0 3 . For a different view see Vezzani (2 0 1 8 , 1 1 2 9 ). See Dupuy and Viñuales (2 0 1 5 , 3 2 3 ). Francioni (2 0 1 0 , 4 4 ). IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 1 0 1 environment within the corpus of economic, social and cultural rights (Boyle 2 0 1 2 , 6 4 2 ) and the development of more ‘courageous jurisprudence’ upholding the collective dimension of human rights affected by environmental harm (Francioni 2 0 1 0 , 5 4 -5 5 ). Such proposals should certainly be welcomed. However, their implementation in practice appears at least questionable. Moreover, while meant to address specific legal challenges, they might fail in providing an overall solution to the multitude of issues raised by the complex relationship between human rights and the environment. Against this background, one could wonder whether further clarity and even a progressive development of international law as far as human rights and the environment are concerned might come from the work of UN special procedures mandate-holders1 1 5 . Generally speaking, the contribution of United Nations special procedures to the development of international human rights law might occur either by enlarging the scope of human rights norms through authoritative interpretation or by supporting and participating in the drafting process of new legal instruments (Nifosi 2 0 0 5 , 6 4 ). To the extent that special procedures also rely on consultations with interested stakeholders and, especially, governments, the related findings might even be considered –albeit cautiously and on a case-by-case basis –relevant evidence of opinio juris116 . At least as far as it portrays the entire body of human rights norms relating to the environment and clarifies the content and scope of correspondent substantive and procedural human rights obligations, the Mapping Report issued in 2 0 1 3 1 1 7 by the UN Independent Expert on human rights and the environmnt might well be seen as having potentially contributed to the codification and further development of the legal framework related to human rights and the environment. The role that the work of the Independent Expert has allegedly played in terms of ‘progressive’ development, especially by shaping uniformly State practice, is made evident by the very recommendations contained in the Mapping Report: “The Independent Expert understands that not all States have formally accepted all of these norms. … Despite the diversity of sources from which they arise, however, the statements are remarkably coherent. See supra, introduction. See Nifosi (2 0 0 5 , 6 5 ). The fact that Special Rapporteurs can also have an impact on the development of international law is made evident by the UN Guiding Principles on Internal Displacement drafted within the mandate of the Special Rapporteur on the human rights of internally displaced peoples. These Guiding Principles have influenced further legal developments, such as the adoption in 2 0 0 9 of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa. On this specific topic see, inter alia, Abebe (2 0 1 1 ). 117 See Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Mapping Report, UN Doc. A/HRC/2 5 /5 3 , 3 0 December 2 0 1 3 . 115 116 102 ELENA CARPANELLI Taken together, they provide strong evidence of converging trends towards greater uniformity and certainty in the human rights obligations relating to the environment. These trends are further supported by State practice reflected in the universal periodic review process and international environmental instruments. … In this light, the Independent Expert encourages States to accept these statements as evid ence of actual or emerging international law”1 1 8 . The UN Independent Expert also recommended that “… States and others take these human rights obligations into account in the development and implementation of their environmental policies”1 1 9 . By focusing on convergences in State practice, the UN Independent Expert also attempted to overcome most of the issues related to the inherent fragmentation that characterize human rights approaches to environmental protection. Moreover, the fact that it identified some of the main challenges ahead (e.g. the extraterritorial reach of human rights obligations pertaining to the environment), and undertook the task of further clarifying them120 , have paved the way to the setting of clearer standards even with respect to some of the most controversial issues. The efforts undertaken by the UN Independent Expert in drafting a Compilation of Good Practices in the use of human rights obligations related to the environment121 may have likewise exerted some influence in fostering further convergent developments in terms of State practice, as well as in guiding future policymaking endeavours. The same may be held true with respect to the efforts undertaken by the Special Rapporteur on human rights and the environment, which, in the attempt to further clarify States’ environmental obligations, has issued reports on specific aspects, such as human rights and biodiversity122 , children’s rights and the environment123 , and clean air124 . The previously mentioned Framework Principles on Human Rights and the Environment, which the former UN Special Rapporteur, John Knox, submitted to the Human Rights Council in 2 0 1 8 , may also be seen not only as an attempt to clarify human rights obligations related to the environment but, more generally, as a standards-setting effort. Additional inputs in terms of converging State practice may also come from the thematic report on good practices specifically related to the implementation of the right to a safe, clean, healthy and sustainable environment, which the new Special Rapporteur, David Boyd, is expected to submit to the Human Rights Council in 2 0 2 0 1 2 5 . 118 119 120 121 122 123 124 125 Emphasis added. Ibid ., paras. 2 7 -2 8 . Ibid ., para. 8 4 . Ibid ., para. 8 2 . UN Doc. A/HRC/2 8 /6 1 , 3 February 2 0 1 5 . UN Doc. A/HRC/3 4 /4 9 , 1 9 January 2 0 1 7 . UN Doc. A/HRC/3 7 /5 8 , 2 4 January 2 0 1 8 . UN Doc. A/HRC/4 0 /5 5 , 8 January 2 0 1 9 . See again Human Rights Council, Resolution 3 7 /8 , para. 9 (d). IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 1 0 3 Furthermore, UN special procedure mandate-holders on human rights and the environment have taken part in policy and regulatory debates related to the global environment, such as the follow-up process to the 2 0 1 2 UN Conference on Sustainable Development and the post-2 0 1 5 global thematic consultations on environmental sustainability. The involvement of the Independent Expert and of the Special Rapporteur in policy and law-making efforts related to the global environment might represent an additional alley through which they may foster the development of international law as far as human rights and the environment are concerned. The above considerations demonstrate that the work of the UN Human Rights Council’s special procedures has contributed and might further contribute in several ways to clarifying the content and scope of existing human rights obligations as regards environmental protection. Moreover, it may favor a uniform development of State practice in that regard. Finally –to conclude where we began –one could wonder whether, in parallel to the role played by UN Human Rights Council’s special procedures, relevant progresses might also come from the dynamic dialogue between the international and domestic dimensions. An interesting example in this respect is represented by the already-mentioned decisions in the Urgend a case. In its writ of summons before the Hague District Court, the Urgenda Foundation, acting on behalf of itself and as the legal representative of 8 8 6 private individuals, claimed, inter alia, that the Netherlands had violated Articles 2 and 8 of the ECHR in the implementation of its climate change policy. According to the plaintiff the Netherlands would not have complied with their positive obligation to take preventive measures against climate change by reducing Dutch emissions to an adequate level1 2 6 . While ruling out the possibility that Urgenda could be designated as a direct or indirect victim pursuant to Article 3 4 of the ECHR, the Court of first instance found that Articles 2 and 8 of the Convention, as interpreted by the ECtHR, nevertheless constituted important sources of interpretation of national law1 2 7 . Human rights considerations thus contributed to the Court’s conclusion that the Netherlands failed to abide by its duty of care by not adhering to international climate change standards. As a result, the Court ordered the State to limit its collective greenhouse emissions levels in order to reduce them by 2 5 per cent in 2 0 2 0 , in comparison with the emission levels of 1 9 9 0 . This conclusion was confirmed by the Hague Court of Appeals and by the Dutch Supreme Court. As has been noted, this reasoning has the potential to be a precedent for cases in other States (Dellinger 2 0 1 8 , 5 3 6 ), where similar applications 126 127 Urgend a Found ation v. Kingd om of the Netherland s, para. 2 3 3 ff. Ibid ., paras. 4 .4 5 and 4 .4 6 . 104 ELENA CARPANELLI have indeed already been filed1 2 8 . Whereas these cases have so far been limited to climate change, nothing prevents the same reasoning from being applied also to other environmental claims. Moreover, regardless of its shortcomings, the Urgenda case certainly shows how a dynamic dialogue between the international and national dimensions may shape future developments in the relationship between human rights and the environment even in the face of some of the most pressing current challenges (such as, in the specific case, climate change). On the one hand, international human rights norms and ‘environmental case law’, even when not directly applicable, might provide important guidance to domestic adjudication. On the other hand, domestic court decisions, especially if consistent and bearing ultimate authority, could represent to a certain extent relevant State practice contributing to the formation and development of customary law, as well as to the convergent interpretation of existing treaty norms1 2 9 . 6 . Conclud ing remarks The safeguarding of the environment and the protection of human rights are commonly regarded as inherently interdependent concerns of modern international society (Kiss and Shelton 2 0 0 4 , 6 6 1 ). From a legal standpoint, however, the interplay between the environment and human rights has so far received only ‘fragmented’ acknowledgment. Furthermore, the very nature of current environmental threats raises doubts as to the suitability and effectiveness of existing human rights approaches to environmental protection. Whilst it is undeniable that present-day environmental threats challenge the traditional human rights approaches to environmental protection, there are elements supporting the view that the current legal landscape might dynamically ‘adjust’ itself to encompass some of the most See, for instance, Maria Khan et al. v. Fed eration of Pakistan et al., filed before the Lahore High Court in February 2 0 1 9 , where the plaintiff argues that government’s inaction on climate change violated their fundamental rights, including the right to a healthy environment. See also Commune d e Grand e-Synthe v. France, filed before the Council of State in 2 0 1 9 , where the municipality sued the government for climate change inaction, and Friend s of the Irish Environment v. Ireland , now pending before the Court of Appeals, after the High Court ruled in favour of the government on 1 9 September 2 0 1 9 . The applicants complained that Ireland ’s Mitigation Plan violates, inter alia, human rights obligations. Other pending cases include the following: Klimaatzaak v. Kingdom of Belgium and others (filed in 2 0 1 5 ), Friends of the Earth Germany, Association of Solar Supporters et al. v. Germany (filed in 2 0 1 8 ) and Notre Affaire à tous et al. v. France (filed in 2 0 1 9 ). 129 Concerning the role of national courts decisions in term of interpretation and development of rules of international law see, inter alia, Moremen (2 0 0 6 ) and Nollkaemper (2 0 1 4 , 5 4 5 ff). 128 IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 1 0 5 pressing current issues. Recent developments have increasingly shown that both UN special procedures and domestic practice may contribute –although to a different extent –to this dynamic evolution. Yet certain issues are unlikely to find d efinitive solutions through either of the abovementioned developments. This applies, for instance, with regards to the ‘individualistic approach’ inherent to some existing systems of human rights protection and the difficulties that certain environmental phenomena –first and foremost climate change –may pose in establishing a relationship between environmental degradation and the impairment of a protected right. 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Macquarie Journal of International and Comparative Environmental Law Journal 8 (1 ): 3 6 -4 7 . 108 ELENA CARPANELLI Lewis, Bridget. 2 0 1 6 . Human Rights Duties Towards Future Generations and the Potential for Achieving Climate Justice. Netherland s Quarterly of Human Rights 3 4 : 2 0 6 -2 2 7 . Lewis, Bridget. 2 0 1 8 . Environmental Human Rights and Climate Change. Singapore: Springer. May, James and Erin Daly. 2 0 1 4 . “The Future We Want” and Constitutionally Enshrined Procedural Rights in Environmental Matters. In Global Environmental Law at a Crossroad s, eds. Robert V. Percival, Jolene Lin and William Piermatte, 3 0 4 7 . Cheltenham: Edward Elgar. May, James and Erin Daly. 2 0 1 5 . Global Environment Constitutionalism. Cambridge: Cambridge University Press. May, James and Erin Daly. 2 0 1 9 . Human Rights and the Environment: Legality, Ind ivisibility, Dignity and Geography. Northampton: Edwar Elgar. Merrils, John. 2 0 0 8 . Environmental Rights. In The Oxford Hand book of International Environmental Law, eds. Daniel Bodansky, Jutta Brunnée, and Ellen Hey, 6 6 3 -6 8 0 . Oxford: OUP. Moremen, Philip. 2 0 0 6 . National Court Decisions as State Practice: A Transnational Judicial Dialogue? North Carolina Journal of International Law and Commercial Regulation 3 2 : 2 5 9 -3 0 9 . Morgera, Elisa. 2 0 1 4 . Protecting Environmental Rights through the Bilateral Agreements of the European Union: Mapping the Field. In International Law for Common Good s. Normative Perspectives on Human Rights, Culture and Nature, eds. Federico Lenzerini and Ana Filipa Vrdoljak, 4 2 1 -4 4 2 . Oxford, Portland: Hart. Nifosi, Ingrid. 2 0 0 5 . The UN Special Proced ures in the Field of Human Rights. Antwerpen, Oxford: Intersentia. Nollkaemper, André. 2 0 1 4 . Conversations among Courts: Domestic and International Adjudicators. In The Oxford Hand book of International Ad jud ication, eds. Cesare Romano, Karen Alter and Yuval Shany, 5 2 3 -5 4 9 . Oxford: OUP. Ong, David. 2 0 1 0 . Procedural Environmental Justice? The Evolution of Environmental Means for Environmental Protection: from Inter-state obligations to Individual-state Rights. In Global Justice and Sustainable Development, ed. Duncan French, 1 3 7 -1 6 6 . Leiden: Martinus Nijhoff Publishers. Pavoni, Riccardo. 2 0 1 3 . Interesse pubblico e d iritti ind ivid uali nella giurisprud enza ambientale d ella Corte europea d ei d iritti umani. Napoli: Editoriale Scientifica. Pavoni, Riccardo. 2 0 1 5 . Environmental Jurisprudence of the European and Inter-American Court of Human Rights. Comparative Insights. In Environmental Law Dimensions of Human Rights, ed. Ben Boer, 6 9 -1 0 6 . Oxford: OUP. Peters, Birgit. 2 0 1 8 . Unpacking the Diversity of Procedural Environmental Rights: The European Convention on Human Rights and the Aarhus Convention. Journal of Environmental Law 3 0 : 1 -2 7 . Petersmann, Marie-Catherine. 2 0 1 4 . The Integration of Environmental Protection Considerations within the Human Rights Law Regime: Which Solutions Have Been Provided by Regional Human Rights Courts?. Italian Yearbook of International Law 2 4 : 1 9 1 -2 0 1 8 . Pineschi, Laura. 2 0 1 4 . Un’evoluzione imperfetta nella tutela del diritto a un ambiete soddisfacente: la sentenza della Corte di giustizia dell’ECOWAS sul caso SERAP v. Nigeria. Diritti umani e d iritto internazionale 8 : 1 0 3 -1 3 2 . Pitea, Cesare. 2 0 0 9 . Protezione dell’ambiente e tutela dei diritti umani. In La protezione d ell’ambiente nel d iritto internazionale, eds. Alessandro Fodella and Laura Pineschi, 1 3 3 -1 6 1 . Torino: Giapichelli. IV. Human Rights and the Environment in the Dynamics of International Law: Past, Present and Future 1 0 9 Pitea, Cesare. 2 0 1 3 . Diritto internazionale e d emocrazia ambientale. Parma: Edizioni Scientifiche Italiane. Poli, Ludovica. 2 0 1 4 . La Corte di giustizia dell’ECOWAS: quali prospettive per un concreto miglioramento della tutela dei diritti umani in Africa?. Diritti umani e d iritto internazionale 8 : 1 3 3 -1 5 8 . Popovi , Neil. 1 9 9 6 . In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment. In Columbia Human Rights Law Review 2 7 : 4 8 7 -6 0 3 . Post, Harry. 2 0 1 9 . The State of a Human Right to Healthy Environment. Israel Yearbook on Human Rights 4 9 : 1 7 1 -2 0 5 . Postiglione, Amedeo. 2 0 1 0 . Human Rights and the Environment. The International Journal of Human Rights 1 4 : 5 2 4 -5 4 1 . Razzaque, Jona. 2 0 1 0 . Human Rights to a Clean Environment: Procedural Rights. In Research Hand book on International Environmental Law, eds. Maurice Fitzmaurice et al., 2 8 4 -3 0 0 . Cheltenham, Northampton: Edward Elgar. Razzaque, Jona. 2 0 1 0 b. Right to a Healthy Environment in Human Rights Law. In International Human Rights Law. Six Decad es after the UDHR and Beyond , eds. Mashood A. Baderin and Manisuli Ssenyonjo, 1 1 6 -1 3 5 . Farnham: Ashgate. Redgwell, Catherine. 1 9 9 6 . Life, the Universe and Everything: A Critique of Anthropocentric Rights. In Human Rights Approaches to Environmental Protection, eds. Alan Boyle and Micheal R. Anderson (eds.), 7 1 -8 7 . Oxford: Claredon Press. Rinaldi, K. 2 0 0 9 . Arrêt du 3 Avril 2 0 0 9 . Kawas Fernandez c. Honduras. Revue générale d u d roit international public 1 1 3 : 6 8 9 -6 9 7 . Rodriguez-Rivera, Luis. 2 0 0 1 . Is the Human Right to the Environment Recognized under International Law? It Depends on the Source. Colorad o Journal of International Environmental Law and Policy 1 2 : 9 -4 5 . Rutledge, Jessica. 2 0 1 1 . Wait a Second –Is that Rain or Herbicide? The ICJ’s Potential Analysis in Aerial Herbicid e Spraying and an Epic Choice between the Environment and Human Rights. Wake Forest Law Review 4 6 : 1 0 7 9 -1 1 1 2 . Scovazzi, Tullio. 1 9 9 5 . Le azioni delle generazioni future. Rivista giurid ica d ell’ambiente 1 : 1 5 3 -1 5 9 . Scovazzi, Tullio. 2 0 1 9 . L’interpretazione e l’applicazione “ambientalista” della Convenzione europea dei diritti umani, con particolare riguardo al caso “Urgenda”. Rivista giurid ica d ell’ambiente 3 : 6 1 9 -6 3 2 . Shelton, Dinah. 1 9 9 1 . Human Rights, Environmental Rights, and the Right to Environment. Stanford Journal of International Law 2 8 : 1 0 3 -1 3 8 . Shelton, Dinah. 2 0 0 6 . Human Rights and the Environment: What Specific Environmental Rights have been Recognized? Denver Journal of International Law and Policy 3 5 : 1 2 9 -1 7 1 . Shelton, Dinah. 2 0 1 1 . Human Rights and the Environment: Substantive Rights. In Research Hand book on International Environmental Law, eds. Malagosia Fitzmaurice, David Ong and Panos Merkouris, 2 6 5 -2 8 3 . Cheltenham: Edward Elgar. Shelton, Dinah. 2 0 1 2 . Resolving Conflicts between Human Rights and Environmental Protection: Is there a Hierarchy? In Hierarchy in International Law, eds. Erika de Wet and Jure Vidmar, 2 0 6 -2 3 5 . Oxford: Oxford University Press. Sohn, Louis. Stec, Stephen and Jerzy Jendro ka. 2 0 1 9 . The Escazú Agreement and the Regional Approach to Rio Principle 1 0 : Process, Innovation, and Shortcomings. Journal of Environmental Law 3 1 : 5 3 3 -5 4 5 . The Stockholm Declaration on the Human Environment. 1 9 7 3 . Harvard International Law Journal 1 4 :4 2 3 -5 1 5 . 110 ELENA CARPANELLI Trilsch, Mirja. 2 0 0 9 . European Committee of Social Rights: The Right to a Healthy Environment. International Journal of Constitutional Law 7 : 5 2 9 -5 3 8 . Turner, Stephen, Dinah Shelton, Jona Razzaque, Owen McIntyre and James May. 2 0 1 9 . Environmental Rights. The Development of Stand ard s. Cambridge: Cambridge University Press. Van Der Linde, Morné, Lirette Louw. 2 0 0 3 . Considering the Interpretation and Implementation of Article 2 4 of the African Charter on Human and Peoples’ Rights in light of the SERAC Communication. African Journal of Human Rights 3 : 1 6 7 -1 8 7 . Van Dyke, Brennan. 1 9 9 4 . A Proposal to Introduce the Right to a Healthy Environment into the European Convention Regime. Virginia Environmental Law Journal 1 3 : 3 2 3 -3 7 3 . Vasak, Karel. 2 0 0 1 . The Rights of Future Generations. In Scientific and Technological Developments and Human Rights, eds. Linos-Alexander Sicilianos and Maria Gavouneli, 2 7 5 -2 8 0 . Athens: Sakkoulas Publishers. Vasak, Karel. 2 0 0 4 . Les différentes typologies des droits de l’homme. In Classer les d roits d e l’homme, eds. Emmanuelle Bribosia and Ludovic Hannebel, 1 1 -2 3 . Bruxelles: Bruylant. Vezzani, Simone. 2 0 1 8 . Considerazioni sulla giurisdizione extraterritoriale ai sensi dei trattati sui diritti umani. Rivista d i d iritto internazionale CI: 1 0 8 6 -1 1 3 5 . Westra, Laura. 2 0 0 6 . Environmental Justice and the Rights of Unborn and Future Generations: Law, Environmental Harm and the Right to Health. Abingdon, New York: Earthscan. Winkler, Inga and Carmel Williams. 2 0 1 8 . The Sustainable Development Goals and Human Rights: A Critical Early Review. London, New York: Routledge. CHAPTER V ‘GLOBAL PUBLIC GOODS’ AND INTERNATIONAL LAW: INSIGHTS FROM INTERNATIONAL FOREST PROTECTION Enzamaria Tramontana SUMMARY: 1 . Introduction. –2 . Global forest regulation and governance: an overview. –3 . The ‘global public goods’ concept in the theory of international law. –3 .1 . The ‘rule-based’ approach. –3 .2 . The ‘procedural’ approach. –3 .3 . The ‘aspirational’ approach. –4 . Concluding observations. 1 . Introd uction Over the last decade, few concepts have achieved such a wide and rapid currency in international legal literature as ‘global public goods’1 (hereafter also ‘GPGs’). The concept had its origins outside international law, in a project undertaken at the beginning of the ’9 0 s by a team of renowned political scientists and political economists, who, in turn, drew on the wellestablished economic notion of ‘public goods’ (Kaul et al. 1 9 9 9 )2 . Coined to describe a wide range of issues seeking global regulatory responses, Many of the legal articles on the subject matter can be traced back to five recent symposia or collection: (i) Bratspie 2 0 1 0 , 1 4 7 ff.; Safrin 2 0 1 0 , 1 4 8 ff; (ii) Petersmann 2 0 1 2 , 7 0 9 ff.; Wouters and Ramopoulos 2 0 1 2 , 7 5 1 ff.; Esty and Moffa 2 0 1 2 , 7 7 7 ff.; (iii) Gartner 2 0 1 2 , 2 2 ff.; Meyer 2 0 1 2 , 3 1 9 ff.; (iv) Esposito and Garcimartin 2 0 1 2 , with contributions, among others, by Escribano Francés, 3 9 ff.; Peters, 7 5 ff.; and Calderón Carrero, 3 3 7 ff.; (v) Cafaggi and Caron 2 0 1 2 , 6 4 3 ff.; Bodansky 2 0 1 2 , 6 5 1 ff.; Shaffer 2 0 1 2 , 6 6 9 ff.; Cafaggi 2 0 1 2 , 6 9 5 ff.; Francioni 2 0 1 2 , 7 1 9 ff.; Mavroidis 2 0 1 2 , 7 3 1 ff.; Nollkaemper 2 0 1 2 , 7 6 9 ff. Before that: Maskus and Reichman 2 0 0 4 , 2 7 9 ff.; and Shaffer 2 0 0 4 , 4 5 9 ff. 2 See also: Kaul et al. 2 0 0 2 ; and Kaul and Conceição 2 0 0 6 . The concept of ‘public goods’ first appeared in international relations literature in the early1 9 7 0 s. See, for instance, Russett and Sullivan, 1 9 7 1 , 8 4 5 ff.; Olson 1 9 7 1 , 8 6 6 ff. For a critique of the concept, on the other hand, see Long and Wooley 2 0 0 9 , 1 0 7 ff.; and Coussy 2 0 0 5 , 1 7 7 ff. 1 112 ENZAMARIA TRAMONTANA from environmental protection and the eradication of infectious diseases to the fight against corruption and the maintenance of an open trade system3 , it rapidly entered the discourse of a number of prominent intergovernmental agencies and organizations –including the United Nations Industrial Development Organization, the World Bank, the World Health Organization, and the Organisation for Economic Cooperation and Development –as a way to refer to the greatest policy challenges of the twenty-first century4 . In economic theory, ‘public goods’ are goods characterised by the non-excludability of their benefits, in the sense that it is extremely difficult to exclude someone from enjoying them, and by the non-rivalry of their consumption, meaning that anyone can benefit from them without reducing their availability to others5 . These qualities are what makes them a paradigmatic case of ‘market failure’: because nonexclusion creates incentives to free ride, and absence of rivalry implies that any profit is incompatible with efficiency of allocation, leaving their provision to the market alone would result in undersupply with respect to the socially desirable level. Therefore –so the argument goes – government intervention is required to ensure contribution by all and efficient provision6 . As for ‘GPGs’, the concept seeks to identify those goods in which every State has an interest or, more precisely, those ‘public goods’ that have benefits or costs ‘of nearly universal reach’ and that cannot, thereby, be successfully tackled by any State acting on its own (Kaul et al. 1 9 9 9 , 1 6 ff.)7 . Like ‘public goods’ generally, they are supposed to be structurally prone to undersupply or overexploitation in the absence of some form of collective action and coordination. Because of their ‘global’ nature, furthermore, they are deemed to encounter the additional challenge of the absence, at the supranational level, of a centralised State-like authority with general regulatory, taxing and coercive powers. From this, it follows that their provision calls for international rules and mechanisms that, by providing adequate incentives and ensuring a fair burden sharing, 3 4 0 ff. See, for instance, Mendez 2 0 0 9 , 3 8 2 ff.; Mendoza 2 0 0 2 , 4 5 5 ff.; Aylward 2 0 0 3 , See United Nations Industrial Development Organization 2 0 0 8 ; World Health Organization 2 0 0 2 ; Organisation for Economic Cooperation and Development – International Task Force on Global Public Goods 2 0 0 4 ; Joint Ministerial Committee of the Boards of Governors of the World Bank and the International Monetary Fund on the Transfer of Real Resources to Developing Countries 2 0 0 7 . 5 The concept was first given expression by P. Samuelson in the 1 9 5 0 s: see Samuelson 1 9 5 4 , 3 8 7 ff. See also, more recently, Cornes and Sandler 1 9 9 6 ; Geuss 2003. 6 See, in this regard, the seminal Olson 1 9 7 1 . 7 See also Stiglitz 2 0 0 6 , 1 4 9 ff.; Escribano Francés 2 0 1 2 , 3 9 ff. But see also the critical observations in Kratochwil 2 0 1 2 , 6 1 ff. 4 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 1 3 overcome States’ tendency to free-ride and promote their mutual cooperation8 . But not only that: the theory of global public goods maintains that States are not the exclusive producers of public goods on the global plane, and that such goods are (and should be) produced by an array of different actors, including the private profit and non-profit sector, cooperating among themselves at different governance levels9 . Choices surrounding the identification, prioritization and production of global public goods cannot be made on the basis of neutral economic considerations, but rather depend on policy determinations, which, in turn, need to be perceived as fair and legitimate in order to be effective. Therefore, it is necessary for the interests of all public and private stakeholders to be incorporated, and taken into account, in relevant decision-making, and for the burdens and benefits of public goods provision to be equitably distributed among them1 0 . Whereas for some years international political scientists and political economists were its only users, from the mid-2 0 0 0 s the concept of ‘global public goods’ has progressively entered the lexicon and the agenda of international lawyers. Especially in the last few years, studies have burgeoned on the potential contribution of the GPG perspective to the study of international law and, in a growing number of different issue areas, the framework of global public goods has been invoked and applied as an innovative methodological tool to identify the challenges for international law in addressing global governance issues, and design new, effective solutions1 1 . At the same time, but at a markedly higher rate, the role and, particularly, the effectiveness of international law in the provision of ‘global public goods’ has begun to be scrutinised12 . With few exceptions, in this context scholars have shown the tendency to consider the concept as having attained the status of something of a ‘term of art’ in international legal circles, to be employed without any need to explain its scope or significance. 8 2007. See generally Oye 1 9 8 6 and, more recently, García-Verdugo 2 0 0 3 , and Barret See particularly Kaul and Mendoza 2 0 0 2 , 7 8 ff. See Kaul 2 0 1 4 , 3 ff. 11 See, generally, Bodansky 2 0 1 2 , 6 5 7 ff. A ‘global public goods’ perspective has been applied, for example, in the fields of the international protection of cultural property and cultural heritage (see Francioni 2 0 1 2 , and Vadi 2 0 1 3 , 2 9 ff.); to international investment law (see Choudhury 2 0 1 3 , 4 8 1 ff.); to free trade (see Mavroidis 2 0 1 2 ); to international environmental law (see Hey 2 0 1 2 b, 8 8 1 ff.; and Morgera 2 0 1 2 , 7 4 3 ff.); and to global health (see Gartner 2 0 1 2 ). See also Van Aaken 2 0 1 8 , 6 7 ff. 12 See, among the first contribution on the subject matter, Wouters and De Meester 2 0 0 3 . See also, later on, Villalpando 2 0 1 0 , 3 8 7 ff.; Nollkaemper 2 0 1 2 , 7 7 2 ff.; Krisch 2 0 1 4 ; Petersen 2 0 1 6 , 2 5 3 ff.; Skander Galand 2 0 1 8 , 1 2 5 ff. 9 10 114 ENZAMARIA TRAMONTANA True, one cannot deny the fact that, from an international legal perspective, the idea of global public goods “sounds quite familiar”. (Stoll 2 0 1 1 , 2 )13 . “Many issues discussed under this new approach”, as others have observed, “have formed part of the international agenda for years, not to say decades”; and “diplomacy and academia have created a rich variety of concepts and formulas” –such as ‘common heritage’ or ‘common concern’ of humankind, ‘public interest norms’ or ‘international public order’ –that, at least at first sight, “appear to be quite close to the public goods approach” (ibid ., 2 -3 ). It comes, then, as little surprise that, even if international law does not know the category of ‘global public goods’, international legal scholars have been prompt to embrace the concept and have generally considered a needless endeavour to spell out its significance. Nonetheless, in international law ‘global public goods’ remains an elusive, catch-all concept. The danger is not just that it becomes abused and worthless for any analytical purpose. More than that, its indiscriminate invocation risks having the effect of giving the misleading impression of a common understanding about its meaning and implications, whereas in fact there exist significant differences in its conceptualisation and use. This contribution aims to bring some clarity to the subject by answering the following questions. What is meant by a ‘global public good’ in international legal terms? And what, if any, doctrinal consequences are (to be) derived from the fact that a good, value or service is considered as a ‘global public good’? What distinguishes the different conceptions of, and perspectives on, ‘global public goods’ present within international legal literature and how, on the other hand, do they possibly relate to each other? How, finally, might such perspectives help to understand problems in the provision of global public goods in fields such as, for example, global environmental protection, global public health, or global food security, and to design potential solutions? To facilitate the task in hand, the investigation won’t be conducted in merely abstract terms, but rather by looking at a particular case study of provision of ‘global public goods’, namely that of sustainable forest management and protection1 4 . True, from an economic perspective, forests do not exhibit the properties of the goods in question. They are subject to the exclusive jurisdiction of the States where they are located and thereby can only be considered, on the global plane, as rivalrous in use and excludable in ownership. Yet forests perform a variety of crucial environmental functions –including regulation of water cycles, biodiversity conservation and mitigation of climate change –that benefit States other than those where they are located and that, because of their characteristics of non- 13 14 In the same line of reasoning, see Bodansky 2 0 1 2 , 6 5 8 . See, in general, Pontecorvo 2 0 1 3 ; Eikermann 2 0 1 5 . V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 1 5 excludability and non-rivalry, allow for a ‘public good’ analysis of their international legal regulation1 5 . No State, in fact, irrespective of whether or not it in itself participates in the global efforts to protect forests, can be prevented from enjoying forests’ essential environmental services and the enjoyment of such services, for its part, does not reduce the value that they have for the others. Therefore, each State is tempted to freeride on the others’ contribution to forest protection, that is, to benefit at no national economic and political expenses from other States’ efforts to reduce deforestation and forest degradation, with the overall result that, in the absence of some form of international cooperation, protection tends to be underprovided in respect of what would otherwise be collectively achievable or not provided at all1 6 . In view of the above, the article is structured as follows. It starts with a background overview on global forest regulation and governance (section 2 ). It then proceeds through the case study of forests to illustrate how the global public goods discourse is conducted in the international legal literature (section 3 ). And it finally draws together its findings for some concluding observations (section 4 ). 2 . Global forest regulation and governance: an overview The current international regulation on forests is composed of a number of different legal instruments, some of which are legally binding and some of which are not. They can be distinguished as ‘forest-focused’ or ‘forestrelated’, depending on whether they are directly and exclusively centred on forests or, although not having forests as their focus, they produce indirect impacts, in one way or another, on forest management and utilisation17 . Since efforts to negotiate a global treaty on forests –dating from the 1 9 9 2 United Nations Conference on Environment and Development and still ongoing –have so far been futile, the two most important existing international ‘forest-focused’ instruments pertain to the realm of soft law18 . The first, in chronological order, is the Nonlegally Bind ing Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (‘Forest See, for instance, Touza Montero and Perrings 2 0 1 2 . See, the interesting analysis in Humphreys 2 0 1 2 , 1 3 5 ff. Since 1 9 9 0 , There has been a net loss of some 1 2 9 million hectares of global forest cover and, while the rate of annual decrease in forest area has slowed, the global net rate of deforestation remains at 3 .3 million hectares for year. See Food and Agriculture Organization of the United Nations, 2 0 1 6 , 3 . 17 For this classification, see Haug and Gupta 2 0 1 3 , p. 6 0 ff. See also, in a similar fashion, Rayner, 2 0 1 0 , 9 ff. 18 For an overview on the progress of international forest law since 1 9 9 2 , see MacKenzie 2012, 114 ff. See also B. Schulte zu Sodingen 2003, 397 ff.; and Desai 2008. 15 16 116 ENZAMARIA TRAMONTANA Principles’)1 9 . Adopted in Rio in 1 9 9 2 , it is the first international document to affirm the need for a holistic approach to forests, that is, an approach taking into account their multiple and interconnected functions and uses, and to balance “the sovereign right [of States] to exploit their own resources” with their responsibility to ensure that forests “be sustainably managed to meet the social, economic, ecological, cultural and spiritual needs of present and future generations”. The second is the Non-Legally Bind ing Instrument on All Types of Forests (‘NLBI’), adopted by the UN General Assembly in 2 0 0 7 , after three intense years of negotiations2 0 . Expressly built on the Forest Principles, it reaffirms the principle of the sovereignty of States over natural resources, but strengthens their commitment to pursue sustainable forest management, and designs a new, more precise framework for enhanced international cooperation. More numerous are ‘forest-related’ international legal instruments. They can be divided into instruments covering only specific, geographically limited subsets of the total world forest areas, on the one hand, and instruments capturing only one or more specific forest ecological functions, on the other. The former category includes the World Heritage Convention (WHC), whose members are committed to the identification and conservation of the most remarkable examples of the world’s natural and cultural heritage, including forests of “outstanding universal value from the point of view of science, conservation or natural beauty”2 1 and the United Nations Convention to Combat Desertification (UNCCD), promoting the preservation of the soil protective functions of forests, specially forests located near areas that are desertified or prone to desertification2 2 . The latter comprises the Convention on International Trad e in End angered Species of Wild Fauna and Flora (CITES), which regulates the international trade in certain endangered fauna and flora, a number of which are in forests2 3 ; the Convention on Biological Diversity (CBD), recognising the fundamental importance of forest biodiversity Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, United Nations Conference on Environment and Development, 3 -1 3 June 1 9 9 2 , Rio de Janeiro, Brazil. 20 United Nations General Assembly, 6 2 nd session, Agenda item 5 4 , Non-Legally Binding Instrument on all Types of Forests, 3 1 January 2 0 0 8 , UN Doc. A/RES/6 2 /9 8 , on which see Kunzmann 2 0 0 8 , 9 8 1 ff. 21 Convention for the Protection of the World Cultural and Natural Heritage, Paris, 1 6 November 1 9 7 2 , UNTS, Vol. 1 0 3 7 , 1 5 1 ff. 22 Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, Paris, 1 4 October 1 9 9 4 , UNTS, Vol. 1 9 5 4 , 3 ff. 23 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Geneva, 1 July 1 9 7 5 , UNTS, Vol. 9 9 3 , 2 4 3 ff. 19 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 1 7 and promoting its protection, recovery and sustainable use2 4 ; and the United Nations Framework Convention on Climate Change (UNFCCC), which addresses the role of forests as both sources and sinks for greenhouse gases2 5 , and its Kyoto Protocol2 6 . At least two rules of customary international law can also be considered as having emerged in the field, alongside (and as limits to) the traditional principle of State permanent sovereignty over natural resources: one imposing on States hosting forests a duty of conservation and rational utilization, and the other imposing on all other States, in primis industrialised countries, a duty to cooperate with, and provide assistance to, the former for the implementation of sustainable forest management2 7 . Expressly announced both by the Forest Principles (paras. 3 and 7 ) and by the Non-Legally Bind ing Instrument on All Types of Forests (paras. 6 and 7 ), such duties can be inferred from most ‘forest-related’ international treaties, such as, for example, the UNFCC (Art. 4 , para. 1 (d) and para. 3 ), the CBD (Arts. 6 and 2 0 , para. 2 ), the HWC (Arts. 4 and 7 ), or the UNCCD (Arts. 5 and 6 ), and are recurrent in the practice of States, relevant treaty-bodies and international organisations, at both universal and regional levels2 8 . The lack of an international forest convention explains, at least in part, why global forest governance takes place in a fragmented way, within a number of different forums. Relevant institutions and entities can be distinguished, in the same manner as regulatory instruments, along the line between those whose mandate is centred directly and exclusively on Convention on Biological Diversity, Rio de Janeiro, 5 June 1 9 9 2 , UNTS, Vol. 1 7 6 0 , 7 9 ff. 25 United Nations Framework Convention on Climate Change, New York, 9 May 1 9 9 2 , UNTS, Vol. 1 7 7 1 , 1 0 7 ff. 26 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 1 1 December 1 9 9 7 , UNTS, Vol. 2 3 0 3 , p. 1 4 8 ff. 27 See Brunee 1 9 9 6 , 5 ff. But before: Gestri 1 9 9 6 , 1 5 8 ff. 28 Under the UNFCCC, for example, each Contracting Party “shall … promote sustainable management... of sinks and reservoirs of... greenhouse gases, including... forests” (Art. 4 , par. 1 , let. d) and developed country Parties shall additionally provide financial resources “to meet the agreed full costs incurred by developing country Parties in complying with their obligations” (Article 4 , para. 3 ). According to the WHC, likewise, Parties in whose territory the natural heritage is situated have a duty of ensuring the identification, protection and conservation of such heritage, but also, and at the same time, a right to be provided with international financial assistance for the implementation of their obligations (Article 4 ). Similarly, the UNCCD calls affected country Parties “to establish strategies … to combat desertification and mitigate the effects of drought” (Article 5 ) and further establishes that, in addition to their general obligations, developed country Parties undertake to provide substantial financial resources and other forms of support to assist affected developing country Parties... to develop and implement their own strategies to combat desertification (Article 6 ). 24 118 ENZAMARIA TRAMONTANA forests, and those which, while having a different focus, produce indirect impacts on forests and the various services they provide2 9 . Among relevant intergovernmental bodies, the only one tackling the full range of forest issues in a comprehensive and integrated manner is the United Nations Forum on Forests (UNFF), established in 2000 as a subsidiary body of the Economic and Social Council30 . Composed of all Member States of the United Nations, and assisted by a Collaborative Partnership among 14 international organizations and secretariats with substantial programmes on forests, its main functions are to promote policy development on forest issues, facilitate the implementation of international forest-related commitments, foster a common understanding on sustainable forest management, and assist countries to develop national forest strategies and programmes31 . Specific aspects of forest governance, on the other hand, are covered both by international agencies and treaties’ governing bodies, especially conferences of the parties to relevant environmental agreements. Agencies include the Food and Agriculture Organization, whose Committee on Forestry (COFO) provides States with information, policy advice and technical assistance on international forestry problems and promotes actions to be undertaken by the Organization in the field3 2 ; the United Nations Development Programme (UNDP), whose work consists in helping countries in the development and implementation of policies of sustainable forest management3 3 ; and the United Nations Environment Programme (UNEP), engaged in relevant cross-sector partnerships and investments3 4 . As for treaties’ governing bodies, a special mention is due See, for a general but brief overview, McDermott 2 0 1 0 , 1 9 ff.; Glück et al. 2 0 0 5 , 5 1 ff. 30 The United Nations Forum on Forests (UNFF), on which see more extensively Eikermann 2 9 1 5 , 4 0 ff. 31 The Collaborative Partnership on Forests (CPF) operates as an informal coordination mechanism uniting 1 4 major forest-focused and forest-related intergovernmental and non-governmental organizations, including the FAO, the IUFRO, the CBD, the UNCCD, and the UNFCCC Secretariats, the UNDP, the World Bank and the IUCN, with the aim of strengthening collaboration and maximizing efficiencies in forest governance. For more information on the CPF, see <www.cpfweb.org>. 32 The biennial sessions of COFO bring together senior government officials to identify emerging policy and technical issues, to seek solutions and to advise FAO and others on appropriate action: see <www. www.fao.org/forestry/5 7 7 5 8 /en>. The FAO Strategy on Forests and Forestry, adopted in 2 0 1 0 , lays out the organisation’s vision on the sector and emphasises a “broad view of forestry” as a “multi-disciplinary concept that encompasses social, economic and environmental aspects” (at www.fao.org/docrep/0 1 2 /al0 4 3 e/al0 4 3 e0 0 . pdf> ). 33 For more information on UNDP’s forests-related initiatives, visit UNDP’s webpage <www.undp.org>. 34 For more information on UNEP’s forests-related initiatives, visit the Forest Section of the UNEP’s webpage <www.unep.org/forests>. 29 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 1 9 on the one hand, to the initiative on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD or REDD+ as now labelled), launched under the UNFCCC to incentivise developing countries to make wise forest use through financial rewards for emission reductions associated with decreases in deforestation and forest degradation35 ; and, on the other hand, to the Expanded Programme of Work on Forest Biological Diversity, created by the Conference of State Parties to the CDB and directed at promoting the conservation and sustainable use of forest biodiversity, the enhancement of institutional and socio-economic settings, and the improvement of forest classification systems and assessment methods3 6 . Finally, significant forest-focused initiatives have progressively been consolidated both in the realm of hybrid public-private cooperation, in the form of partnerships bringing together States, international agencies, corporations and civil society organizations to raise funds and implement programs for the conservation and sustainable management of forests; and in the realm of private, non-governmental organisations, especially in the form of forest certification schemes, setting global, substantive and procedural standards for responsible forest management and implementing them through licensing systems and inspection programmes3 7 . Prominent examples include, respectively, the Congo Basin Forest Partnership (CBFP), launched at the 2002 World Summit on Sustainable Development in Johannesburg to enhance forest ecosystem management and improve the standard of living in the Congo Basin,3 8 and the Forest Stewardship Council (FSC), initiated in 1 9 9 3 and representing today one of the largest not-for-profit certification mechanisms globally3 9 . 3 . The ‘global public good s’ concept in the theory of international law At least three different approaches to GPG conceptualisation can be identified in international legal literature. We can call them ‘rule-based’, ‘procedural’ and ‘aspirational’. The first centres essentially on the characteristics, and concrete way of functioning of, the legal rules governing the production of global public goods. The second has its main focus in the procedures through which decisions concerning global public goods are taken and implemented. Finally, the third concentrates on the abstract content of substantive rules and is characterised by a strong aspirational dimension. At <www.un-redd.org>. See extensively Haug and Gupta 2 0 1 3 , 8 2 ff. Secretariat of the Convention on Biological Diversity, Expanded Programme of Work on Forest Biological Diversity, Montreal, 2004, at <www.cbd.int/doc/publica tions/for-pow-en.pdf>. 37 See Rehbinder 2 0 0 3 , 3 3 1 ff.; Gulbrandsen 2 0 0 4 , 7 5 ff.; Meidinger 2 0 0 6 , 4 7 ff. 38 For more information, consult the webpage of the CBFP at <www.pfbc-cbfp.org>. 39 See Gueneau 2 0 1 2 , 3 7 9 ff. 35 36 120 ENZAMARIA TRAMONTANA 3 .1 The ‘rule-based ’ approach A first group of international legal scholars can be identified who employ the notion of ‘global public goods’ to refer to those values or goods that are considered of interest to the international community of States regarded as a whole4 0 . These scholars maintains that the growing “consensus according to which respect for certain fundamental values is not to be left to the free disposition of States individually or inter se”, but rather “recognized and sanctioned by international law as a matter of concern to all States” (Simma 1 9 9 7 , 2 2 9 ff.) has led in the past decades to a structural transformation of the international legal order from a system having a strong ‘private law’ dimension, essentially made up of rules aimed at ensuring the preservation of States’ individual interests and regulating their bilateral, reciprocal obligations, to a system displaying an increasing ‘public’ law dimension, characterised by the emergence and multiplication of norms imposing on States collective or erga omnes obligations, that is, obligations towards the international community itself for the protection of interests directly related to it4 1 . ‘Global public goods’, in this perspective, possess as their unique feature the existence of an interest of the international community in their provision or, to use other words, the fact that, because of their being connected to fundamental aspects of the well-being of people across national borders –such as preservation of international security and peace, self-determination of peoples, protection of fundamental human rights and preservation of the global environment – the international community itself has come to regard them as being worthy of special consideration4 2 . They correspond to the category of ‘public goods’ as elaborated by economic theory, first, in that, once they are See, on this approach, Nollkaemper 2 0 1 2 , 7 7 6 -7 7 7 ; Villalpando 2 0 1 0 , 3 8 7 ff. See ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1 9 7 0 , 3 ff., at p. 3 2 , where it is observed that “an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State (…). By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes”. The Institut d e Droit International defines an obligation erga omnes as “an obligation under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action” (Resolution of the Krakow Session, Obligations Erga Omnes in International Law, 2 0 0 5 , art. 1 (a)). See, for the earliest accounts in legal scholarship, Picone 1 9 8 3 , 1 5 ff.; Simma 1 9 9 7 , 2 9 3 ff.; Ragazzi 1 9 9 7 . 42 See Delbrück 1 9 9 8 , 1 7 ff.; Benzing 2 0 0 6 , 3 6 9 ff.; Villalpando 2 0 1 0 , 3 9 2 ff.; Picone 2 0 1 5 , 1 0 ff. 40 41 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 2 1 provided, their benefits are indivisibly spread among the entire international community; with the consequence that, since it would be usually considered the most rational strategy to free-ride on others’ contribution to their production, they risk being under-provided in the absence of some sort of collective action and cooperation; secondly, and most notably, in that their provision generally depends on the combined efforts of all of the members of the international community, so that the efforts undertaken by one member with a view to contribute to the production of the goods in question make sense, in a cost-benefit perspective, only if they are accompanied by the contribution of all the others. From this, it follows that a failure to cooperate in the production of a global public good by a member of the international community undermines the enjoyment of the good’s benefits by the others; and all community members share, as a result, a collective interest in the behaviour of each and every one of them. The significance of assigning a ‘public’ quality to certain goods, under this approach, lies in the ‘material characteristics’ of the international legal rules providing for their protection and, more specifically, in the peculiar consequences that, based on these characteristics, are attached to their violation (Picone 2 0 1 1 , 4 1 1 -4 1 2 ) –namely, that these are rules that impose erga omnes obligations and that, while only the State that has sustained a direct and tangible injury to its personal interests can seek remedies for violations of rules imposing bilateral obligations, when it comes to obligations erga omnes any State, acting in the name and on behalf of the international community, may take remedial actions, whether or not it has been specifically injured by the violation4 3 . In this respect, rules producing erga omnes obligations are better equipped than traditional binary rules in dealing with the problems associated with protection of ‘global public goods4 4 . The reason is that rather than bringing mutual advantages to States, rules protecting global public goods provide indivisible benefits to the entire international community, making it untenable, thereby, to sanction violations by one State through the withdrawal of equivalent benefits by another, as traditionally done with rules imposing synallagmatic obligations4 5 . What See Arts. 4 2 , lett. b) and 4 8 , par. 1 , lett. b) of the 2 0 0 1 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its Fifty-third Session, UGA res. 5 6 /8 3 , December 1 2 , 2 0 0 1 . For a doctrinal account, see supra note 3 5 . 44 See particularly Posner 2 0 0 9 , 5 ff., esp. 1 3 . See also Nollkaemper 2 0 1 2 , 7 7 7 , who observes that “assigning an erga omnes quality to certain norms (…) reflects a strategic choice to solve the problem of under-enforcement of norms that protect the public interest”. 45 On the ‘limits of the principle of reciprocity as a mechanism for ensuring compliance’ with rules protecting community interests, see Tanaka 2 0 1 1 , 3 2 9 ff. 43 122 ENZAMARIA TRAMONTANA is more, global public goods comprise goods and values an attack against which, while indirectly harming all the members of the international community, does not materially affect any one of them in particular, with the consequence that constraining the relationship of responsibility arising from violations of relevant rules to the traditional bilateral perspective linking only the offending and the injured State would preclude their protection (Picone 2 0 1 1 , 4 1 5 -4 1 6 )4 6 . The case of forests illustrates this point, for only the entitlement of all States to invoke responsibility in case of breach of relevant obligations renders it possible to ensure their enforcement. Rules providing for forest protection do not involve reciprocal advantages to States, but rather aim at generating indivisible benefits to the international community as a whole; and harm to forests by one State does not directly damage any other individual State, but produces indirect adverse effects against all of them4 7 . To adhere to the traditional bilateralist paradigm of international responsibility would thereby result in relevant rules being unenforceable under international law4 8 . Forest protection may be considered as a ‘global public good’, if looked at through the approach under examination, for practice shows that the international community itself, due to the importance of forest ecological services for the wellbeing of the humanity as a whole, has come to have a legal interest in its realisation. This community interest, and, with it, the corresponding ‘public’ nature of the goods concerned, is expressed in international legal terms, in the environmental sector, by the notion of ‘common concern of mankind’, which applies to the protection of all those natural resources that, irrespective of being located within the territory of individual States, and falling under their national sovereignty, are essential to the global environment and are considered, accordingly, to have some special value to the international community as a whole4 9 . Even though, until today, the notion of common concern has never expressly been used by any international legal instrument in connection to forests, relevant practice provides sufficient evidence of the fact that, because of the crucial role that forests perform in maintaining global ecological conditions, and because of the need of a collaborative and concerted action in response to risks of increasing forest depletion, their preservation has acquired the status of a ‘common See likewise Simma 1 9 9 7 , 2 9 6 -2 9 7 ; Shelton 2 0 0 6 , 3 1 8 . For a similar reasoning, see Boyle 1 9 9 1 , 2 2 9 ff., esp. 2 3 0 ; Kornicker Uhlmann 1 9 9 8 -1 9 9 9 , 1 0 1 ff.; and further Kiss and Shelton 2 0 0 4 , 7 4 -7 5 . 48 See Shelton 2 0 0 9 , 3 3 ff.; and in the same line of reasoning, Picone 2 0 1 1 , 4 1 5 416. 49 On the concept of common concern see generally Kiss 2 0 0 3 , 3 ff.; Brunnée 2 0 0 7 , 5 5 0 ff. On the relationship between common concern and GPGs, see Bodansky 2 0 1 2 , 6 5 4 ; Stoll 2 0 1 1 , 3 ; and more extensively, Hey 2 0 1 2 b, 8 9 5 ff. 46 47 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 2 3 concern’ under international law5 0 . Language to this effect can be found, for example, in the NLBI, expressing ‘concern’ about the adverse impacts of continued deforestation on the global environment, and stressing the need to strengthen ‘collective efforts’ for an effective implementation of sustainable forest management5 1 . But further elements supporting this contention are offered by the UNFCCC and the CBD, which, by stating the conviction that climate change and conservation of biodiversity are common concerns of humankind, suggest the conclusion that, in their roles as, respectively, essential reservoir of greenhouse gases and home to the greatest varieties of the world’s wildlife species, forests should be considered as being the object of a common concern, too5 2 . An increasing number of commentators consider the erga omnes nature of relevant obligations as one of the legal implications of the status of ‘common concern’ under international law53 . Accordingly, if one accepts that forest protection has become part of the common concern of humankind, then it follows that both the obligation of States hosting forests to pursue their conservation and sustainable use, and the obligation of all the other States to support the former to fulfil their duties in a cooperative manner, established by customary international law, are to be viewed as being owed by each State toward the international community as a whole and as giving rise to the corresponding entitlement of all States to invoke responsibility in case of their violation, claiming from the responsible State the cessation of the breach and if necessary, taking lawful measures against that State to ensure cessation5 4 . 3 .2 The ‘proced ural’ approach A second group of scholars use the notion of ‘global public goods’ more broadly, to encompass all those goods and services of general interest, in whose regard, due to the processes of globalisation and the resulting global interdependence, national regulation has progressively See Gestri 1 9 9 6 , 8 9 -9 0 ; Pontecorvo 2 0 1 3 , 2 8 0 -2 8 4 . See Non-Legally Binding Instrument on all Types of Forests, Preamble. 52 See, respectively, United Nations Framework Convention on Climate Change, Preamble, and Convention on Biological Diversity, Preamble. 53 See, for instance, Shelton 2 0 0 9 , 1 1 5 ; Voigt 2 0 1 4 , 2 1 . 54 See Arts. 4 8 and 5 4 of the 2 0 0 1 Draft Articles on the Responsibility of States for Internationally Wrongful Acts. According to Kiss and Shelton 2 0 0 4 , 7 6 , “many of the codified norms and customary standards in the environmental field may be viewed as obligations erga omnes”. But see Brunnée 1 9 8 9 , 8 0 7 : “it can thus be said that there are several rules of international environmental law which are applicable erga omnes. The underlying ‘common interest’ being the driving force in their development”. 50 51 124 ENZAMARIA TRAMONTANA become ill-suited, and which, as a consequence, have come to be addressed at the global level. ‘Global public goods’ thus understood, rather than being identified as, or associated with, fundamental aspects of the wellbeing of humankind, are thereby found in such diverse fields as, to name but a few, security and arms control, public health, environmental protection, trade, intellectual property, telecommunication and internet governance, energy, banking and financial regulation5 5 . These scholars work in the emerging field of Global Administrative Law (GAL). They posit that much of contemporary global governance takes the form of administrative action – that is, “rulemaking, adjudications, and other decisions that are neither treaty-making nor simple dispute settlements between parties” –performed in a fragmented and decentralised fashion by a vast range of different governmental and non-governmental actors, outside the direct control of States (Kingsbury et al. 2 0 0 5 , 1 7 ). Concerned primarily with the legitimacy deficit inherent in this growing exercise of public authority ‘beyond the State’, they describe and promote, as a solution to this deficit, the transposition of a set of mechanisms and principles of an administrative law character from the national to the global level5 6 . The idea underlying the concept of ‘global public goods’, in GAL literature, has less to do with the non-rivalry and non-excludability of public good consumption in a classical economic sense, than it does with the various actor interdependencies and distributive concerns in global public goods provision pointed at by the GPG theory in its most recent manifestation. In its understanding of the concept, GAL scholars share with GPG theorists the twofold assumption, on the one hand, that global public goods aren’t, and shouldn’t be, exclusively supplied by States, but instead by an array of different actors, including private non-profitmaking and profit-making entities, operating on interconnected local, national, and global planes; and, on the other hand, that the identification, prioritisation, and production of global public goods implies complex policy determinations to be made and legitimacy issues to be tackled. The resulting picture is one in which the conventional partition between the public sector providing public goods and the private sector providing private goods is blurred and the introduction of innovative procedural devices is advocated in order to boost the legitimacy and, ultimately, the efficiency of global public goods provision. Here, forest conservation and sustainable use represent a clear example of cross-border general interest service or ‘public good’ which, due to the impossibility of being effectively dealt with by particular States acting alone, have inescapably to be handled at the global level5 7 . See, for a general account, Auby 2 0 1 1 , 2 4 6 . See Kingsbury et al. 2 0 0 5 , 2 7 ff.; Cassese 2 0 0 5 , 6 6 3 ff.; Esty 2 0 0 6 , 1 4 9 0 ff. 57 On the development of global administrative law in the environmental sector, more generally, see Dimitropoulos 2 0 1 1 , 4 4 3 ff.; Sanz Larruga 2 0 1 0 , 2 7 7 . 55 56 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 2 5 In this perspective, in particular, not only does forestry occupy a place among the most dynamic and propitious sectors of today global administration, since a significant amount of mechanisms of an administrative law type have been created, in the last two decades, within the forest sector, but recent developments in global forest governance are illustrative of two broader trends which are being registered, and are advocated, in the contemporary governance of public goods at the global level5 8 . The first of these trends, which is looked at, in short, as answering the need to fight States’ free-riding tendencies in the implementation of costly regulations, consists in the gradual displacement of global public goods regulation from traditional intergovernmental policy networks –like the UNFF –or ‘distributed administration’ conducted by domestic authorities under international treaties –like the system of export and import permits issued in accordance with the CITES appendices5 9 –towards more ‘centralised administration’ by international organisations’ bodies insulated from the political influences of national governments – like the International Emissions Trading Scheme operating under the Kyoto Protocol to the UNFCCC6 0 . The second, which is considered, instead, as a strategy to overcome the lack of financial, technical and organisational resources from the public sector, manifests itself in the increasingly active involvement in the governance of global public goods of the private profit and non-profit sector, both in the form of ‘hybrid intergovernmental-private administration’ –like the Collaborative Partnership on Forests –and in the form of ‘private administration’ –as in the case of the certification programmes operated by the FSC. Desirable as they are, however, these emerging trends in the governance of global public goods have their pitfalls, which, in turn, lie at the basis of the principal concern of GAL scholars. Removed from the hands and/or from the control of governments, they hold, GPG regulation falls short of the classic legitimacy sources of domestic and international law-making, i.e., respectively, democracy and the consent of States. How to ensure, then, that decisions associated with the identification, prioritization and production of global public goods –decisions on, for example, how to allocate scarce financial resources among multiples goods having different value for different peoples or how to address conflicts in the pursuit of competing goods –are legitimate and, thereby, effective? On these trends, see generally Stoll 2 0 1 1 , 1 0 , and, with special regard to the environmental sector, Kingsley 2 0 0 6 , 6 6 ff. 59 See, in particular, Zacharias 2 0 0 8 , 1 8 3 3 ff. 60 See, among others, Lea Láncos 2 0 0 8 , 1 2 6 5 ff. 58 126 ENZAMARIA TRAMONTANA To answer this question, GAL emphasis is on improving process or throughput legitimacy, that is, the procedural quality of GPG decisionmaking, through the transposition of a refined set of procedural tools from domestic administrative law to the governance of global public goods. Its purpose, in particular, is to ensure that all GPG governing bodies meet adequate standards of transparency, participation and review, for –so the argument goes –only if these standards are properly implemented, could decisions on global public goods be expected to be legitimate and their production, as a result, to be effective6 1 . While review systems are still absent or underdeveloped in global forest governance, mechanisms aimed at ensuring transparency towards the public and promoting public participation have increasingly been emerging in the sector6 2 . Following a broader trend begun with UNCED and reflecting the recognition of the genuine involvement of all relevant stakeholders in decision-making and implementation as “one of the fundamental prerequisites for the achievement of sustainable development”, almost all regulatory bodies have developed websites offering large amounts of data on internal decision-making procedures and several intergovernmental agencies and organisms have involved in the processes of decision-making non-government actors, both forprofit and not-for-profit, representing affected social and economic interests6 3 . An example can be seen in the UNFF, which from its inception has encouraged the active participation in its sessions of forest-related stakeholders –referred to as the ‘Major Groups’ identified in Agenda 2 1 –and interacted with them by convening multi-stakeholder dialogues with governments on UNFF-related issues6 4 . A number of initiatives, likewise, have emerged that centre on engagement with grass- See Auby 2 0 1 1 , 2 4 6 -2 4 7 ; Esty 2 0 0 6 , 1 4 9 6 . Efforts to introduce review mechanisms have been made almost exclusively in the private certification sector. The most prominent example is provided by the FSC Dispute Resolution System, which evaluates complaints and appeals raised by stakeholders against decisions, performances or any other issues within the FSC scheme. For more information visit <www.fsc.org/disputeresolution>. For a comment, see Brodski 2 0 1 0 , 4 3 . 63 The citation is from United Nations Conference on Environment and Development, Rio de Janerio, 3 to 14 June 1992, Agenda 21, UN Doc A/Conf.151/26, Chapter 2 3 .2 . The need for an effective public participation in environmental decision-making was already identified in the 1 9 8 7 Report ‘Our Common Future’, also known as the ‘Brundtland Report’, from the United Nations World Commission on Environment and Development. For a scholarly account, see Ebbesson 1 9 9 8 , 5 1 ff., and more recently Duvic Paoli 2 0 1 2 , 8 0 ff. 64 The following Major Groups are identified in Agenda 2 1 : Business and Industry; Children and Youth; Farmers; Indigenous Peoples; Non-governmental Organizations; Local Authorities; Scientific and Technological Community; Women; Workers and Trade Unions. See <www.un.org/esa/forests/major-groups/index.html>. 61 62 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 2 7 roots participants, especially forest-dependent local and indigenous communities, at the implementation level. The UN-REDD+ Programme, for instance, promotes the development of national policies in the framework of broad engagement of forest sector grassroots stakeholders6 5 . 3 .3 The ‘aspirational’ approach Finally, the ‘global public goods’ concept has recently experienced extensive use by a third group of scholars, sharing a cosmopolitan perspective on international law. They envision a departure from the traditional inter-State paradigm of international law towards a new comprehensive legal order run by a plurality of countervailing institutions at overlapping local, national, regional, and global levels, having individuals (in the role of ‘world citizens’) as its key point of reference and informed by cosmopolitan values, such as dignity, equal worth of, and moral concern for, every human being, inclusiveness, subsidiarity, justice, and personal responsibility6 6 . Also referred to as ‘world public goods’, global public goods are identified, in this context, as those goods and values, having a strong universal vocation, whose benefits (should) reach the global human community not only trans-spatially (i.e. across the entire globe) but also in a trans-temporal perspective (i.e. extending to both current and future generations). Deemed to be generally “composed of vertically and horizontally interconnected national, regional and worldwide public goods” (Petersmann 2 0 1 3 , 5 ), they are distinguished based on whether they present themselves as ‘final’ (like vaccinations for contagious diseases, the reduction of carbon dioxide emissions, or an efficient world trading system) or ‘intermediate’ (such as international legal regimes or the transnational rule of law), with the latter providing the basis for, and contributing towards, the provision of the former. Cosmopolitans’ approach to global public goods is articulated with a strong normative content, informed by the ideal to rebuild basic international legal concepts in light of cosmopolitan values and principles, with the ultimate objective to give rise to better global governance for the collective supply of public goods. Their analysis has as its point of departure the assumption, borrowed from the GPG theory, that current arrangements for the collective supply of global See UN REDD Programme, 2 0 1 4 Annual Report of the UN-REDD Programme Fund –Stakeholder Engagement (2014), available at <www.unredd.net>. For an academic account on REDD’s approach towards stakeholder engagement, see Nartley 2 0 1 4 . 66 See, for instance, Pierik and Werner 2 0 1 0 ; Held 2 0 0 3 . 65 128 ENZAMARIA TRAMONTANA public goods suffer from an ‘incentive gap’, caused by the lack of a perceived equitable distribution of burdens and benefits, and having as its main consequence a decrease in the legitimacy and, ultimately, in the effectiveness of the global system in providing for the production of the goods in question (Hey 2 0 1 4 , 2 4 9 ff.)6 7 . The focal concern of cosmopolitans, against this background, is thereby on finding adequate solutions to close this gap, inspired by and reflecting the values associated with moral cosmopolitanism. One main point is made: that the governance of global public goods should be conducted in a fair manner, respecting the transnational rule of law, promoting the essential wellbeing of all the world’s citizens, and avoiding imposing harmful externalities on its future generations. Intragenerational and inter-generational equity must be guaranteed, and requirements of distributive and compensatory justice be met, in order to ensure social cohesion and incentivize cooperation in global public goods provision6 8 . Forest protection, from this perspective, can be looked at as an example of ‘global public good’ since the adverse effects of deforestation and forest degradation, in terms of reduced biodiversity, release of greenhouse gas emissions, increased soil erosion, etc., typically affect all humanity, in both an interspatial and an intertemporal dimension. As such, it raises a number of complex questions. Part of the problem is that the current generation bears the burden generated by the forest management policies of past generations, while the adverse consequences of the policies adopted by the current generation will be borne by future generations. How should responsibilities be handled between them? Another part of the problem is that, while forest loss causes severe damage to the global environment and jeopardises vital interests of all human beings, at the same time logging or conversion of forests to other land uses, such as agriculture and pasture, plays a major role in influencing fundamental patterns of social and economic development6 9 . A majority of world’s forests, what is more, are located in developing countries, which have limited capacities for designing and implementing measures for forest conservation and for which the costs of the sustainable management of forests, in terms of lost development opportunities, are particularly high. How can one respond effectively to these challenges7 0 ? See likewise Wouters and De Meester 2 0 0 3 , 1 1 . See Hey 2 0 1 0 , 4 5 ff., and, although from a partially different theoretical perspective, Petersmann 2 0 1 1 , 1 1 8 ff. In the same line of reasoning, in the context of the GPG Theory, Albin 2 0 0 2 , 2 6 3 ff. 69 See for instance Hooker 1 9 9 4 , 8 2 3 ff. 70 See, analogously, Caney 1 9 9 6 , 1 9 ff. 70 On the principle of sustainable development, see generally Beyerlin 1 9 9 6 , 9 5 ff.; Bosselmann 2 0 1 3 , 6 6 7 ff. 67 68 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 2 9 Possible solutions to these dilemmas, for cosmopolitans, can be found in the principles of sustainable development and of common but differentiated responsibility, in which, so their argument goes, considerations of equity and justice inherently associated with moral cosmopolitanism find their clearest expressions in the environmental context7 1 . The concept of sustainable development, the status of which in the international legal sphere is still subject to debate, encompasses the principle of inter-generational equity and aims at assuring distributive justice (i.e. a fair distribution of costs and benefits) among people living in different times7 2 . According to its most frequently quoted definition, elaborated in 1 9 8 7 by the World Commission on Environment and Development, it demands the use of natural resources to meet “the needs of the present without compromising the ability of future generations to meet their own needs”, requiring, in other words, current generations to pass natural resources on to future generations “in no worse a condition than they were received in” or without “exceed[ing]” the resources’ “reasonable capacity to replace” themselves in the future (World Commission on Environment and Development 1 9 8 7 , 6 5 ). Forest instruments commonly refer to the need to preserve forests for the benefits of future generations in connection with the requirement that forests be managed suitably. The Forest Principles, for example, emphasise that forest resources and forest lands “should be sustainably managed to meet the social, economic, ecological, cultural and spiritual needs of present and future generations”7 3 . The principle of common but differentiated responsibilities, for its part, is intrinsically related to the notion of intra-generational equity, and based not just on a distributive but also on a compensatory conception of justice (calling for compensation of those parties who have suffered undue harms in the past)7 4 . It implies that countries which have See Hey 2 0 1 0 , 9 6 ff., and Caney 2 0 0 5 , 7 4 7 ff. See, within the vast literature on the topic, Weiss 1998, 98 ff.; Agius 1998, 281 ff. 73 Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, section 2 , letter b. 74 According to Principle 7 of the Rio Declaration for example, “States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command” (Rio Declaration on Environment and Development, adopted by the UN Conference on Environment and Development, 1 2 August 1 9 9 2 , Rio de Janeiro, UN Doc. A/CONF.1 5 1 /2 6 ). On the principle of common but differentiated responsibility and its status in international law, compare, for example, Stone 2 0 0 4 , 2 7 6 ff., and Hey 2 0 1 2 . On the equity dimension of common but differentiated responsibility see Shelton 2 0 0 7 , 6 5 6 -6 5 8 . 71 72 130 ENZAMARIA TRAMONTANA contributed the most, in the past, to the degradation of the world environment and have, now, the technical and financial capabilities to address its consequences, should shoulder the major burden of environmental protection. In the forest context, it entails “different types and levels of national responsibility for addressing and reversing deforestation” and is reflected in provisions that require developed countries to provide financial and technology assistance to developing countries in implementing their conservation duties and to make the implementation of such duties conditional upon the fulfilment of developed countries’ assistance commitments7 5 . 4 . Conclud ing observations Coined in the field of international politics and political economics, and rapidly having become widespread in the documentation of official international organisations, the notion of global public goods has been progressively introduced in the international legal discourse. With limited exceptions, however, scholars have tended to take it for granted, giving thereby the impression to share a common understanding of its meaning and implications. Against this background, the question put forward in this article was what is meant by a ‘global public good’ in international legal terms, how this concept is used and whether it has any added analytical power in the field of international law. The analysis has shown that the literature that deals with global public goods from an international legal perspective advances three main conceptualisations, one centred on the particular way of functioning of the rules aimed at the protection of global public goods, another articulated around the decision-making procedures related to the production and management of the goods in question, and the last one concerned with the abstract content of the relevant rules and the values they uphold. While the three of them share the basic idea of ‘global public goods’ as goods whose production requires cooperation across national boundaries, each carries a diverse meaning and reflects a different underlying theoretical approach to international law. The first This is a common obligation across relevant international environmental agreements. See, for example, Convention on Biological Diversity, Art. 2 0 (4 ); Framework Convention on Climate Change, Art. 4 , section 3 . V. also Forest Principles, section 1 , lett. b, stating that: “The agreed full incremental cost of achieving benefits associated with forest conservation and sustainable development require increased international cooperation and should be equitably shared by the international community”. In the literature, see Gestri 2 0 0 3 , 2 9 7 ff. and 3 3 5 ff. 75 V. ‘Global Public Good s’ and International Law: Insights from International Forest Protection 1 3 1 conceptualisation expresses the mainstream understanding of international law as a corpus of rules existing primarily, if not exclusively, between States. It describes global public goods as those goods which are ‘the concern of all States’ or, in other words, in which the international community of States, as a whole, has come to have a legal interest: ‘global’ in ‘global public goods’ is used as a synonym of inter-national and ‘public’ points to the emergence of patterns of collective management by States – acting on behalf of the whole international community –of interests transcending their individual ones. The second and the third conceptualisations, on the other hand, are borne out of two different projects of ‘re-thinking’ the world legal order with the aim to accommodate the deep transformations caused by the rise of global governance. GAL suggests that international law is increasingly sidelined by alternative public, private or hybrid regulatory law in solving public goods problems: ‘global’ is seen as a synonym of transnational and ‘public’ is rooted in the various ‘publics’ (made up of technocratic regulators and regulatees) to which each issue-oriented regulatory regime relates7 6 . Cosmopolitanism, for its part, advocates a departure from the ‘classic’ statist paradigm of the international legal order towards a new legal order having individuals at its centre. It works out ‘global’ with an ideological universalist vocation and ‘public’ with reference to an elusive ‘global demos’ or ‘human community’ (Held 2 0 1 0 , 9 2 ). To each conceptualisation, in turn, there corresponds a different angle of comprehension of the difficulties associated with global public goods production and an equally different analytical leverage to the identification of relevant solutions. The focal concern of the ‘rule-based’ approach is on the functioning of the rules providing for the protection of global public goods. Using the economic language of ‘public goods’ in this context allows a strengthened understanding of the problems of “underenforcement” related to the norms that protect international common interests and accounts for the emergence, as a response, of legal mechanisms enabling patterns of collective norm enforcement (Nollkaemper 2 0 1 2 , 7 7 6 -7 7 7 ). The ‘procedural’ approach focuses instead on the procedures through which decisions concerning global public goods are taken and implemented. The concept of ‘public goods’ does less analytical work here: the existence of global public goods justifies the multiplication of global regulatory regimes, and the governance issues they raise in respect of their provision supply the motivational basis for the emergence of tools enhancing the efficiency and accountability of decision-making7 7 . Finally, the ‘aspirational’ approach concentrates on the abstract content of the substantive rules aimed at the production of global public goods. In this context, the merit of the ‘public goods’ 76 77 See futher Kuo 2 0 1 1 , 5 6 ff. See, in this regard, Esty 2 0 0 6 , 1 4 9 6 . 132 ENZAMARIA TRAMONTANA discourse lies in the fact that it supplies a sound basis for addressing issues of international fairness by shedding light on the need for rules protecting public goods to create incentives and to be perceived as just – i.e. to realise an equitable sharing of the benefits and burdens associated with the goods in questions –to make compliance worthwhile and overcome States’ tendency to free-ride. Much that is different in these conceptualisations and in the underlying theoretical approaches, however, does not seem to necessarily lead to incompatibility and conflict. On the contrary, the impression one gets from the above analysis is that, at least when, as in the case of forest protection, they concur in identifying a good as a ‘global public’ one, the three approaches examined may pragmatically be viewed as complements, each of which gives rise to a particular, partial perspective on the challenges related to the production of global public goods and can, thereby, be reconciled with the others to better find adequate and effective solutions: success in combating deforestation and forest degradation lies, at the same time, and to the same degree, with the existence of mechanisms of collective enforcement of relevant obligations, as accounted for by the ‘rule-based’ approach; with the effective and legitimate functioning of the institutions participating in global forest governance, as underscored by the ‘procedural’ approach; and with the alignment of incentives and the fair treatment of all relevant participants, as advocated by the ‘aspirational’ approach. 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Mechanisms (Organization, Programmes, Financing and Laws). –3 .1 . Organization. –3 .2 . Programmes. –3 .3 . Financing. –3 .4 . Laws. –4 . Areas of European Environmental Law. –4 .1 . General areas. –4 .1 .1 . Environmental liability. –4 .2 . Protection of nature and biodiversity. –4 .3 . Prevention of pollution. –4 .3 .1 . Air pollution. –4 .3 .2 . Water Protection. –4 .3 .3 . Waste. – 4 .3 .4 . Noise pollution. –5 . Climate change and energy. –6 . Citizens face to face with environmental policy: access to information, public participation and access to justice in environmental matters 1 . Characteristics of the European environmental policy The environmental policy of the European Union has three basic characteristics which are very special and distinguish it from other EU policies (Davies 2 0 0 4 ; Kiss and Shelton 1 9 9 7 ; Krämer 1 9 9 8 ). a) Cross-sectional policy. The environment is a sectorial policy regulated in Title XX of the TFEU (arts. 1 9 1 a 1 9 3 ). But it’s also a cross-sectional policy because it requires that all other policies take on an environmental perspective. This is the integration principle: “environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development” (art. 1 1 TFEU). Under this principle, all sectorial policies have incorporated an environmental dimension. Paradigmatic examples are the areas of agriculture, tourism, and energy policy. b) Demanding and tough policy. Environmental policy has broad objectives and aims to achieve a high level of environmental protection. These objectives are listed in article 1 9 1 TFEU: preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, promoting measures 142 JOSÉ FRANCISCO ALENZA GARCÍA at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. Furthermore, the TFEU provides expressly that “Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union” (art. 1 9 1 .2 ). This means that the target is not to establish an environmental policy that is the ‘average’ from each of the Member States. This means that, regardless of the environmental demand of each State, the level of protection should be high. In fact, for most Member States the environmental policy of the Union has acted as a force driving substantial changes in environmental behaviour. And precisely because it is not easy to keep up with European requirements, the TFEU admits that harmonization measures may include, in certain cases “a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union” (art. 1 9 1 .2 , in fine). c) Policy ‘de minimis’. Although European environmental policy is a tough policy, it’s possible that Member States may introduce more stringent protective measures. However, such measures must be compatible with the treaties and shall be notified to the Commission (art. 1 9 3 ). 2 . Principles of European environmental policy 1 2 .1 The preventive principle Preventive action is considered the golden rule of environmental law. Prevention involves prohibition of pollution. And if zero pollution is unfeasible, the principle advocates reduction of pollution and its harmfulness for the environment. This principle is projected on legal techniques such as mandatory permits for polluting activities, punitive sanctions and measures to repair environmental damage. Of particular importance is monitoring and inspection of polluting activities to check whether the facilities meet EU environmental requirements. For this reason the Union has approved, in a non-prescriptive way, minimum criteria for organising, performing, following up and publishing the results of environmental inspections in all Member States2 . A more detailed explanation of the meaning of these principles and their application in the courts of the Member States can be seen in Macroy, R. (ed.). 2 0 0 4 . Principles of European Environmental Law. The Netherlands: Europa Law Publishing. 2 Recommendation 2 0 0 1 /3 3 1 /EC of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States. Subsequently there was approval of the Communication by the Commission of 1 4 November 2 0 0 7 on the review of Recommendation 2 0 0 1 /3 3 1 /EC providing for minimum criteria for environmental inspections in the Member States. 1 VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 4 3 2 .2 The precautionary principle The precautionary principle advises not taking risky decisions when we do not know scientifically and with certainty the possible consequences. According to this principle, where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing effective measures to prevent environmental degradation. The Communication from the Commission of 2 February 2 0 0 0 on the precautionary principle says that this principle is applicable “where preliminary objective scientific evaluation, indicates that there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen for the Community”. The precautionary principle emphasizes preventive action because it makes it possible to reinforce preventive measures or prohibit activity in cases of scientific doubt about the risks for the environment or health. In conclusion, the precautionary principle reinforces preventive action because it establishes a guideline to decide the appropriate measures in situations of scientific uncertainty. 2 .3 The rectification principle with priority at source According to the rectification principle with priority at source, when pollution has not been avoided entirely, remedies should be applied as soon as possible, so that the situation will be corrected in the nearest location to the pollution source. It should be noted that proximity does not refer only to distance, but also to the time of correction. So the correction principle requires rectification at the source and also correction in the nearest time to when contamination occurred. In environmental directives this principle takes shape in the legal requirement to apply the best available technologies and in the obligation to repair environmental damage. 2 .4 Polluter pays principle This principle requires the correction of external environmental factors (use of goods or natural resources at no cost), making the polluter pay for the damage done. In this way, contamination is not free or beneficial. It is a principle linked to the principles of prevention and correction at the source, because its real aim is to prevent contamination occurring by making it unprofitable. Therefore, it is not only a matter of demanding responsibility for pollution caused: it is preferable to use instruments 144 JOSÉ FRANCISCO ALENZA GARCÍA with a preventive or dissuasive effect, as far as possible demanding payment before pollution is caused. Also it’s necessary to avoid the risk of insufficient or inadequate application such that the opposite effect would be achieved. The price to be paid for polluting should not be cost-effective compared with the cost of pollution control mechanisms. It must have an onerous character that encourages not polluting. In addition, it is necessary to establish mechanisms to prevent payment becoming acquisition of the right to pollute (for example, by reserving the possibility of modifying the conditions under which pollution is permitted). The principle is not absolute and public subsidies are allowed to alleviate the economic impact of the implementation of new regulations, for putting in place corrective measures, for investments in environmental improvements, etc. The TFEU admits that, without prejudice to the principle that the polluter should pay, if an environmental measure involves costs deemed disproportionate, such measure shall lay down appropriate provisions in the form of temporary derogations, and/or financial support from the Cohesion Fund (art. 1 9 2 .5 ). 2 .5 Integration and sustainable d evelopment Sustainable development is the principle that tries to reconcile two seemingly contradictory needs: preserving the environment; and economic development. Many international law texts have expressly incorporated the principle of sustainable development. Its canonical definition was established in the Report of the World Commission on Environment and Development: Our Common Future (the Brundtland Report) in 1 9 8 7 in this way: “Sustainable development seeks to meet the needs and aspirations of the present without compromising the ability to meet those of the future”. In European Law the sustainable development principle gained prominence when it gave its name to the Fifth European Community Environment Programme “Towards sustainability”3 . In the Treaty of Amsterdam sustainability was incorporated as one of the aims of the European Union (art. 3 .2 TEU). Sustainable development is also listed as one of the objectives of the international policy of the Union and, in particular, of cooperation in international relations (art. 1 0 A). Decision no. 2 1 7 9 /9 8 /EC of the European Parliament and of the Council of 2 4 September 1 9 9 8 on the review of the European Community programme of policy and action in relation to the environment and sustainable development “Towards sustainability”. 3 VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 4 5 Moreover, the TFEU maintains the link between the integration principle and sustainability: “Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development” (art. 1 1 ). This means that in order to achieve sustainable development an environmental policy is not enough: it’s necessary that each and every one of the policies of the Union integrate the environmental requirements. For this reason, all European policies must assume and internalize environmental commitment. In this essay I cannot expound the way it has been possible to integrate environmental considerations into the operation of all policy sectors and in their regulation (Alenza García 2 0 1 0 ). I will simply highlight, in its general outlines, the approval of the European Union Strategy for Sustainable Development in 2 0 0 1 4 . 3 . Mechanisms (Organization, Programmes, Financing and Laws) 3 .1 Organization All the organisms and bodies of the EU should assume environmental problems in their responsibilities. However, there are some authorities with specific environmental competences in all European institutions. In the European Parliament there is the Committee of Environment, Public Health and Food Safety. However, the most important environmental competences reside, obviously, in the European Commission. In the current Juncker Commission there is a Commissioner for the Environment, Maritime Affairs and Fisheries and one for Climate Action and Energy. Beside these commissions we should note the existence of the Directorate General for the Environment as the body that has been encouraging EU environmental policy since its beginnings. On the other hand, there is a decentralised agency in environmental matters: the European Environment Agency. It was created by Regulation Commission Communication of 1 5 May 2 0 0 1 ‘A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development’ [COM (2001) 264final]. This Communication was revised four years later [COM (2 0 0 5 ) 6 5 8 final)]. Other important resolutions were the following: Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 2 5 February 2 0 0 4 – Integration of Environmental Aspects into European Standardisation [COM(2 0 0 4 ) 1 3 0 ]; and Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 2 5 June 2 0 0 8 on the ‘Sustainable Consumption and Production and Sustainable Industrial Policy Action Plan’ [COM(2 0 0 8 ) 3 9 7 final]. 4 146 JOSÉ FRANCISCO ALENZA GARCÍA 1 2 1 0 /9 0 /EEC and provides independent information on the environment, contributing to developing, adopting, implementing and evaluating environmental policy and law, and informing the general public. 3 .2 Programmes One of the most peculiar instruments of European environmental policy is Programmes. There are many programmes in sectorial areas (waste, water, biodiversity, etc.) and there are other general ones: the Environment Action Programme (EAP). The EAP lacks normative and binding competence (SCJEU of 1 2 December of 1 9 9 6 ). But it is important because through it the Commission sets guidelines and immediate objectives of environmental policy and diagnoses about the state of affairs and provides the basis for the preparation of legislative proposals. Since 1 9 7 3 seven Programmes have been approved. The 7 th Environment Action Programme “Living well, within the limits of our planet”5 is the guide for the European environment policy until 2 0 2 0 . The EAP establishes three key objectives: - to protect, conserve and enhance the Union’s natural capital; - to turn the Union into a resource-efficient, green, and competitive low-carbon economy; - to safeguard the Union’s citizens from environment-related pressures and risks to health and wellbeing. In order to achieve these goals the EAP identifies four “enablers”: better implementation of legislation; better information by improving the knowledge base; more and wiser investment for environment and climate policy; and full integration of environmental requirements and considerations into other policies. 3 .3 Financing According to the TFEU “without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy” (art. 1 9 2 .4 ). These ‘measures’ consist mainly in financial mechanisms with environmental purposes: first a specific fund for the environment, and second the European Structural Funds, which have many environmental objectives. a) The need to provide a general programme of European funding for the environmental actions regardless of their relation to other objectives Decision no. 1 3 8 6 /2 0 1 3 /EU of the Parliament and of the Council of 2 0 November 2 0 1 3 , on a General Union Environment Action Programme to 2 0 2 0 “Living well, within the limits of our planet” (DOUE L3 5 4 /1 7 1 , 2 8 /1 2 /2 0 1 3 ). 5 VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 4 7 of the European Community (agricultural, infrastructure or on regional development) led to the creation of a specific financial instrument called Life6 , and its successor Life+7 . This financial instrument for the Environment allows co-financing environmental projects in three thematic areas: “Nature and Biodiversity”; “Environment Policy & Governance”; and “Information & Communication”. b) The European Structural and Investment Funds (ESI funds) have traditionally included some environmental objectives among their goals, allowing financing of investments for environmental improvements and environmental preservation activities. Expressly the Common Provisions on the European Structural and Investment Funds (ESI funds) (Regulation no. 1 3 0 3 /2 0 1 3 )8 establish that “the objectives of the ESI Funds shall be pursued in line with the principle of sustainable development and with the Union’s promotion of the aim of preserving, protecting and improving the quality of the environment” (art. 8 ). In addition, among their thematic objectives are some environmental goals (art. 9 ): - supporting the shift towards a low-carbon economy in all sectors; - promoting climate change adaptation, risk prevention and management; - preserving and protecting the environment and promoting resource efficiency. These thematic objectives are set in the specific priorities of each Fund. The most prominent specific environmental priorities concern the Cohesion Fund (EU Regulation 1 3 0 0 /2 0 1 3 ); the European Regional Development Fund (EU Regulation 1 3 0 1 /2 0 1 3 ); and the European Agricultural Fund for Rural Development (EU Regulation 1 3 0 5 /2 0 1 3 ). 3 .4 Laws Environmental legislation has been a key aspect of the strategy to achieve the environmental objectives of the European Union. Since the seventies more than 2 0 0 legislative acts have been adopted (with Regulation (EEC) no. 1 9 7 3 /9 2 establishing a financial instrument for the environment (Life). 7 Regulation (EEC) no. 6 1 4 /2 0 0 7 concerning the financial instrument for the environment (LIFE+). 8 Regulation (EU) no. 1 3 0 3 /2 0 1 3 of the European Parliament and of the Council of 1 7 December 2 0 1 3 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) 1 0 8 3 /2 0 0 6 . 6 148 JOSÉ FRANCISCO ALENZA GARCÍA subsequent amendments) in all environmental sectors (water, air, climate change, soil, natural areas, biodiversity, waste, noise, etc.). The type of legislative act most used in this area is the Directive, although it should be noted that the degree of precision and detail of the environmental directives is growing. It has reduced the scope for Member States in transposing them to their domestic law. The demanding nature of environmental law means that it is the area of European Union Law with the largest number of infringement proceedings. For this reason, one of the priorities set in the 7 th Environmental Action Programme (number 4) is “to maximise the benefits of Union environment legislation by improving implementation”. To this end the Programme aims to achieve the following: the public is to have access to clear information showing how Union environmental law is being implemented consistently with the Aarhus Convention; compliance with specific environment legislation is to increase; Union environmental law is to be enforced at all administrative levels and a level-playing field in the internal market is to be guaranteed; citizens’ trust and confidence in Union environmental law and its enforcement is to be enhanced; the principle of effective legal protection for citizens and their organisations is to be facilitated. This requires, in particular, the following measures: i) ensuring that systems at national level actively disseminate information about how Union environment legislation is being implemented, and complementing such information with a Union level overview of individual Member States’ performance; ii) drawing up partnership implementation agreements on a voluntary basis between Member States and the Commission, involving local and regional participation where appropriate; iii) extending binding criteria for effective Member State inspections and surveillance to the wider body of Union environmental law, and further developing inspection support capacity at Union level, drawing on existing structures, backed up by support for networks of professionals such as IMPEL, and by the reinforcement of peer reviews and best practice sharing, with a view to increasing the efficiency and effectiveness of inspections; iv) ensuring consistent and effective mechanisms at national level for the handling of complaints about implementation of Union environment law; v) ensuring that national provisions on access to justice reflect the case law of the Court of Justice of the European Union, and promoting non-judicial dispute resolution as a means of finding amicable and effective solutions for disputes in the environmental field. VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 4 9 4 . Areas of European Environmental Law9 4 .1 . General areas 4 .1 .1 Environmental impact assessment Environmental impact assessment is aimed at evaluating the environmental impact of certain plans and programmes (Directive 2001/42/EC) or public or private projects (Directive 2011/92/EU, partially amended by Directive 2 0 1 4 /5 2 /EU) which are likely to have significant effects on the environment, before they begin and, of course, before their execution1 0 . Environmental assessment seeks a wide range of variables that go beyond purely natural elements, because it must weigh up the potential direct and indirect effects of a project on human beings, fauna and flora; soil, water, air, climate and the landscape; material assets and the cultural heritage; and interaction between the factors referred to. It is the duty of the developers to prepare an environmental impact assessment report with information about the project’s site, design, size and other relevant features and the measures proposed to avoid, prevent or offset significant adverse effects. Especially important is the outline of the main alternatives studied by the developer and an indication of the main reasons for his or her choice, taking into account the environmental effects. The assessment procedure is characterized by transparency and by wide public consultation. To ensure effective public participation, information must be provided as early as possible. This can be done electronically, by public notices or bill posting or via local newspapers. On the one hand, it is necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent. On the other hand, the public shall be informed, as soon as information can reasonably be provided, about many issues (the fact that the project is subject to an environmental impact assessment procedure; the competent authorities responsible for taking the decision; the times and places at which, and the means by which, the relevant information will be made available; etc.). Moreover, the public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures and shall, for that purpose, be entitled to express comments and opinions when all options are open to the 9 2006 In addition to the literature cited later in each section, see the studies in Macrory For more details about the Directive and about its implementation in Spain see the studies in Ruiz De Apodaca 2 0 1 4 . 10 150 JOSÉ FRANCISCO ALENZA GARCÍA competent authority or authorities before the decision on the request for development consent is taken. Finally, there are information duties about the decision to grant or refuse development consent. The public has to be informed about the content of the decision and any conditions attached thereto; about the main reasons and considerations on which the decision is based, including information about the public participation process; and given a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the major adverse effects. 4.1.2 Environmental liability It is regulated by Directive 2 0 0 4 /3 5 /EC of the European Parliament and of the Council of 2 1 April 2 0 0 4 on environmental liability with regard to the prevention and remedying of environmental damage (Zillman et al. 2 0 1 4 ). This Directive only regulates environmental damage on biodiversity (species and habitats protected) in waters and soils. As its name indicates, the purpose of the Directive is double because it includes repair of environmental damage already produced, and also prevention of that kind of damage. The directive establishes an administrative and public system for liability with many features that distinguish it from traditional civil liability. This is because the special characteristics of environmental damage demand a particular legal regime in order to be effective and guarantee the responsibility and polluter pays principles. The main characteristics of this system are the following: 1 ) Identification by national authorities of the operator responsible and establishment of preventive or reparatory measures. If the competent authority has carried out preventive and remedial actions itself, the authority may recover the costs it has borne from the operator responsible for the damage or imminent threat of damage. 2 ) Imputation without fault. The operators of occupational activities under the environmental Directives may be held responsible even if they are not at fault. In the case of other occupational activities, the operator will be held liable only if he or she is at fault or negligent. In any case, the Directive allows the operator not to bear the cost of remedial actions where he demonstrates that he or she was not at fault or negligent and that the environmental damage was caused by one of the following (art. 8 .4 ): - An emission or event expressly authorised by, and fully in accordance with the conditions of, an authorisation conferred by or given under applicable national laws and regulations; - An emission or activity or any manner of using a product in the course of an activity which the operator demonstrates was not considered likely to cause environmental damage according to the state of scientific VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 5 1 and technical knowledge at the time when the emission was released or the activity took place. 3 ) Financial security. The Directive does not impose mandatory financial security, but recommends that Member States take measures to encourage the development of financial security instruments, including financial mechanisms in case of insolvency. 4 ) The procedure for determining the costs can be initiated by the authorities, and also by those natural or legal persons who may be adversely affected by environmental damage and by the environment protection organisations under certain conditions. 5 ) The Directive establishes the methods for repairing environmental damage. The reparation varies depending on the type of damage: - For damage affecting the land, it is required that the land concerned be decontaminated until there is no longer any serious risk of a negative impact on human health; - For damage affecting water or protected species and natural habitats, the aim is restoring the environment to how it was before it was damaged (“primary” remediation). In addition “complementary” remediation is provided (in order to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services) and “compensatory” remediation (to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect). 4 .2 Protection of nature and biod iversity In this broad area there are two main laws that should be highlighted (García Ureta 2 0 1 0 ): a) First there is Directive 9 2 /4 3 /EEC of 2 1 May 1 9 9 2 on conservation of natural habitats and of wild fauna and flora. This Directive created an ecological network of special protected areas, known as “Nature 2 0 0 0 ”, comprised by special areas of conservation designated by Member States. Furthermore, it also includes special protection areas classified pursuant to Wild Birds Directive 2 0 0 9 /1 4 7 /EC. In these areas the Member States must take all necessary measures to guarantee the conservation of habitats in special areas of conservation, and to avoid their deterioration and significant disturbance of species. The Directive identifies the types of habitats and species whose conservation requires designation of special areas of conservation. Special conservation areas are designated in three stages. According to criteria set out in the annexes, each Member State prepares and submits to the Commission a list of Sites of Community Interest. Then the Commission will adopt a list of Sites of Community importance for each of the nine EU bio-geographical regions (the Alpine region, the Atlantic region, the Black Sea region, the Boreal region, the Continental region, the Macronesian region, the Mediterranean region, the Pannonic region and 152 JOSÉ FRANCISCO ALENZA GARCÍA the Steppe region). After that (and no later than six years after the selection of a Site of Community Importance,) the Member State must designate it as a Special Conservation Area. Other tasks for the Member States are the following: encouraging the management of features of the landscape which are essential for migration, dispersal and genetic exchange of wild species; establishing systems of strict protection for those animal and plant species which are particularly threatened; and prohibiting the use of non-selective methods of taking, capturing or killing certain animal and plant species. b) In the second place there is Directive 2009/147/EC of the European Parliament and of the Council of 3 0 November 2 0 0 9 on the conservation of wild birds. The Directive provides the creation of special protection areas (SPAs) for threatened species of birds and for migratory birds. These areas are part of Nature 2 0 0 0 . In addition to these areas, which should be subject to planning or management in accordance with the ecological needs of habitats that are inside and outside the protected zones, the Directive establishes a general system of protection for all species of wild birds, in particular prohibiting the following: deliberate destruction or capture of wild birds; destruction of, or damage to, nests; taking or keeping eggs even if empty; practices which deliberately disturb the birds and which jeopardise the conservation of the species; trading in and keeping live or dead species the hunting and capture of which is not permitted. Member States are allowed to introduce exceptions to these prohibitions, but they must be compatible with the objectives of conservation of wild birds. 4 .3 Prevention of pollution 4 .3 .1 Air pollution There are many laws against air pollution. But the most important, given its broad scope and its innovative legal mechanisms, is Directive 2 0 1 0 /7 5 /EU of the European Parliament and of the Council of 2 4 November 2 0 1 0 on industrial emissions (which replaces seven previous pieces of legislation, including a Directive concerning integrated pollution prevention and control). The most innovative aspect of this Directive is the peculiar authorization or permit that is required for polluting industrial activities. This permit is characterized by three key aspects: 1 ) Integrated approach: the written permit should appreciate all pollution produced jointly by the installation in order to prevent pollution transfer from one medium to another. 2 ) Integration of procedures and/or permits. Member States shall ensure that the conditions of, and the procedures for the granting of, the permit are fully coordinated where more than one competent authority or more than one operator is involved or more than one permit is granted, in VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 5 3 order to guarantee an effective integrated approach by all authorities competent for this procedure. Normally this is achieved through integration of sector authorizations (air, waste, water, etc.) in a single permit. 3 ) Particular determination of emission limit values. Permits must fix the emission limit values for each installation, according to the best available techniques and other criteria (the geographical location or the local environmental conditions of the installation concerned; the technical characteristics of the installation, etc.). Periodically permissions (and conditions thereof) must be reviewed and updated. 4 .3 .2 Water Protection In the field of water protection there are many European regulations. The main and most general one is Directive 2 0 0 0 /6 0 /EC of the European Parliament and of the Council of 2 3 October 2 0 0 0 establishing a framework for Community action in the field of water policy. Its broad purposes have an obvious environmental content: preventing further deterioration and protecting and enhancing the status of aquatic ecosystems; promoting sustainable water use based on long-term protection of available water resources; aiming at enhanced protection and improvement of the aquatic environment, inter alia, through specific measures for progressive reduction of discharges, emissions and losses of priority substances and cessation or phasing-out of discharges, emissions and losses of priority hazardous substances; ensuring progressive reduction of pollution of groundwater and preventing its further pollution, and contributing to mitigating the effects of floods and droughts. The Directive lays down a set of environmental targets and takes a combined approach to the sources of pollution. It also includes some specific measures for certain pollutants. In any case, the main instruments regulated in the directive are two: Management Plans and Pricing policy. a) Management plans (and programmes of measures) are the key instrument. They must be approved for each river basin district. They should establish measures to prevent deterioration of the state of bodies of surface water and groundwater, and restore and enhance this state in order to achieve a good status of such water; reducing pollution from discharges and emissions of hazardous substances; preserve protected areas requiring special protection; etc. In addition, a programme of measures is drafted for each river basin district, and is aimed at achieving the environmental objectives stated in the Directive. In addition, a Programme of measures, aimed at achieving the environmental objectives stated in the Directive, must be drafted for each river basin district. b) The Directive requires Member States to set up a pricing policy for recovering costs of water-related services (including environmental costs and resources) and for encouraging consumers to use resources efficiently and different economic sectors to contribute to the costs of services relating to water usage. 154 JOSÉ FRANCISCO ALENZA GARCÍA Other important regulations about water protection are: - Directive 9 1 /2 7 1 /EEC of 2 1 May 1 9 9 1 concerning urban wastewater treatment. It states requirements for collection, discharges from urban wastewater treatment plants, including emission limit values for these, and industrial wastewater discharged into urban collecting systems. Among other obligations, the Directive imposes collection and treatment of wastewater in urban settlements with a population of at least 2 ,0 0 0 and secondary treatment of the collected wastewaters, and applying more advanced treatment in urban settlements with populations of over 1 0 ,0 0 0 located in designated sensitive areas. Further, Member States must guarantee that treatment plants are properly maintained, so as to ensure sufficient performance, and can operate under all normal weather conditions. And finally, the Directive requires authorisation for discharges of urban wastewater from the agro-food industry and from industrial discharges into urban wastewater collecting systems. - Directive 91/676/EC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources. It promotes a code of good agricultural practice to be implemented by farmers on a voluntary basis. But in vulnerable zones the Directive demands compulsory action programmes to be implemented by all farmers. For this reason, Member States shall identify surface water and groundwater affected by pollution or at risk of being so, based on procedures and criteria detailed in the Directive, and shall designate vulnerable zones, which are all known areas of land in their territories which drain into surface waters and groundwater which are affected by pollution or at risk of being so. - Directive 2 0 0 6 /1 1 8 /EC of the European Parliament and of the Council of 1 2 December 2 0 0 6 on the protection of groundwater against pollution and deterioration. It provides criteria for assessing the chemical status of groundwater and it includes provisions for preventing and limiting indirect discharges (after percolation through soil or subsoil) of pollutants into groundwater. - There are other regulations on the quality of water with general scope (Directive 2 0 0 8 /1 0 5 /EC on environmental quality standards applicable to surface water) or with specific scope according to the different uses of water: quality of water intended for human consumption (Directive 98/83/EC); bathing water (Directive 2006/7/EC); water suitable for fish-breeding (Directive 2 0 0 6 /4 4 /EC); etc. 4 .3 .3 Waste European legislation on waste is one of the oldest and largest. This legislation is inspired by the principle of hierarchy. Currently this principle establishes a hierarchy of five priority objectives of waste policy: prevention (reduction of the amount and harmfulness of waste); preparing for reuse (reuse of waste materials without prior processing); recycling (reuse of VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 5 5 waste materials by transforming them into other products); other recovery (notably energy recovery); safe disposal of unrecovered waste. To achieve this hierarchy it is necessary to draw up specific rules for certain products and for waste derived from them. For this reason, the regulation of waste has a peculiar structure. First, there is a general directive on all types of waste: Directive 2 0 0 8 /9 8 /EC of the European Parliament and of the Council of 1 9 November 2 0 0 8 on waste. From this general framework, the regulations diverge in two directions: - Rules on specific activities of waste management: landfill of waste (Directive 1 9 9 9 /3 1 /EC); incineration of waste (Directive 2 0 0 0 /7 6 /EC recast as Directive 2 0 1 0 /7 5 /EU) and shipments of waste (Regulation 1 0 1 3 /2 0 0 6 ). - Rules on specific types of waste: use of sewage in agriculture (Directive 8 6 /2 7 8 /EEC); packaging and packaging waste (Directive 9 4 /6 2 /EC); end-of-life vehicles (Directive 2 0 0 0 /5 3 / EC); waste from extractive industries (Directive 2 0 0 6 /2 1 / EC); batteries and accumulators (Directive 2 0 0 6 /6 6 /EC); waste electrical and electronic equipment (Directive 2 0 1 2 /1 9 /EU). As well as by the principle of hierarchy, waste legislation is informed by other principles (Alenza García 2 0 1 2 ): 1 ) Rational management of waste. Waste management is carried out without endangering human health and without harming the environment (art. 1 3 ). Therefore, producers or holders of waste must carry out their treatment themselves or else have treatment carried out by a broker, establishment or undertaking (art. 1 5 ). And the establishment or undertaking intending to carry out waste treatment must obtain a permit from the competent authorities which determine the quantity and type of treated waste and the method used as well as monitoring and control operations. 2 ) Principles of self-sufficiency and proximity. Member States shall take appropriate measures to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households. The network shall be designed to enable the Community as a whole to become selfsufficient in waste disposal as well as in the recovery of waste. Finally, the network shall enable waste to be disposed or to be recovered in one of the nearest appropriate installations. 3 ) Polluter-pays principle. The costs of waste management shall be borne by the original waste producer or by the current or previous waste holders. The Directive also allows Member States to decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of this product may share these costs. 4 ) Extended producer responsibility. For certain types of waste, the Directive admits extending responsibility to any person who professionally develops, manufactures, processes, treats, sells or imports products from which the waste came. It may involve the following obligations: 156 JOSÉ FRANCISCO ALENZA GARCÍA - acceptance of returned products and of the waste that remains after those products have been used, as well as subsequent management of the waste and financial responsibility for such activities; - design, development, production and marketing of products so that they are suitable for multiple use, are technically durable and, after having become waste, suitable for proper and safe recovery and environmentally compatible disposal. 4 .3 .4 Noise pollution In the area of noise pollution there are various types of regulations. The most general is Directive 2 0 0 2 /4 9 /EC on the assessment and management of environmental noise. There are also other rules on certain specific sources of noise: motor vehicles (Directive 7 0 /1 5 7 /EEC); machines for outdoor use (Directive 2 0 0 0 /1 4 /EC); or airports (Directive 2 0 0 2 /3 0 /EC). As its name indicates, the Directive on the assessment and management of environmental noise establishes two types of instruments: - Evaluation. For the noise evaluation three mechanisms are contemplated: noise indicators, assessment methods and strategic noise maps. These maps are the most important tool because they enable global assessment of noise exposure in an area due to different noise sources. The strategic noise maps should be made of the areas established by the Directive (major roads and railways, airports, urban agglomerations of more than 2 5 0 ,0 0 0 inhabitants) and allow global assessment of noise exposure in an area exposed to various noise sources in order to take subsequent measures. - Management. The Directive provides for Action Plans. These are aimed at managing noise issues and effects, including sound restrictions and measures to reduce noise if necessary. In addition to regulation, in this area the importance of jurisprudence must be highlighted. In many cases it has been ahead of the law in finding that noise has a harmful potential that can affect different goods and rights, even human rights like respect for private and family life and his home. In this sense, mention must be made of the ECHR sentences in 0 2 /2 1 /1 9 9 0 (case of Powell and Rainer against UK), 1 2 /0 9 /1 9 9 4 (case of Lopez Ostra against Spain); and 1 1 /1 6 2 0 0 4 (case of Moreno Gómez against Spain). 5 . Climate change and energy The European decision with the greatest legal and political importance in the area of the environment has been the integration of energy policy and climate policy. The scientific finding that climate change is a clear and inexorable reality (its effects will last for centuries although CO2 VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 5 7 emissions are stopped)1 1 has led the European Union to establish the strategic objective of “transforming Europe into a an economy with highly efficient energy and low emissions of greenhouse gases”. This strategic objective can only be achieved through integration of energy policies and climate action. This was agreed on as a result of the so-called “green energy package” which started with three communications approved by the Commission on the same day (1 /1 0 /2 0 0 7 ), one about energy policy in general, one about renewable energy, and one about global warming1 2 . The climate and energy package set very ambitious targets known as the “2 0 -2 0 -2 0 for 2 0 2 0 ” targets: - A 2 0 % reduction in EU greenhouse gas emissions from the 1 9 9 0 levels; - Raising the share of EU energy consumption produced from renewable resources to 2 0 %; - A 2 0 % improvement in the EU’s energy efficiency. This integrated policy on energy and climate action has designed the mitigation and adaptation strategies to fight against climate change and has established a set of binding legislation measures which aim to tackle climate change. The legal implications of the integration have produced an extensive and solid normative group in unstoppable growth with implications in many different areas of law (Alenza García 2 0 1 4 ). But the most important regulations can be grouped into five major areas: 1 ) The EU Emissions Trad ing System (EU ETS). It is regulated by Directive 2 0 0 3 /8 7 /EC of the European Parliament and of the Council of 1 3 October 2 0 0 3 . On the one hand, the Directive requires a permit issued by the competent authorities to installations carrying out any of the activities listed in its Annex I and emitting the specific greenhouse gases. On the other hand, the Directive establishes a scheme for greenhouse gas emission allowance trading within the Community (Pozzo 2 0 0 3 and Sanz Rubiales 2 0 1 0 ). 2 ) Promotion of renewable energies. Under Directive 2 0 0 9 /2 8 /EC of the European Parliament and of the Council of 2 3 April 2 0 0 9 on the promotion of the use of energy from renewable sources, Member States Working Group I Contribution to the IPPC Fifth Assessment Report “Climate Change 2 1 0 3 : The Physical Science Basis”. 12 These communications were the following: –“An energy policy for Europe”: Communication from the Commission to the European Council and the European Parliament of 1 0 /0 1 /2 0 0 7 [COM (2 0 0 7 ) 1 ]. –“Renewable energies in the 2 1 st century: building a more sustainable future” XXI: construcción de un futuro más sostenible”: Communication from the Commission to the European Council and the European Parliament of 1 0 /0 1 /2 0 0 7 [COM (2 0 0 6 ) 8 4 8 ]. –“Limiting Global Climate Change to 2 degrees Ceslius. The way ahead for 2 0 2 0 and beyond”: Communication from the Commission to the European Council and the European Parliament of 1 0 /0 1 /2 0 0 7 [COM (2 0 0 7 ) 2 final]. 11 158 JOSÉ FRANCISCO ALENZA GARCÍA took on binding national targets for raising the share of renewable energy in their energy consumption by 2 0 2 0 . Further, the Directive requires Member States to work out National renewable energy action plans, allows support schemes in order to promote the use of energy from renewable sources, and contains provisions on other mechanisms for the promotion of renewable energies: guarantee of origin, access to and operation of grids (ensuring that operators guarantee the transport and distribution of electricity from renewable sources; providing for priority access for this type of energy); etc. 3 ) Energy efficiency. In this field the general regulation1 3 is Directive 2 0 1 2 /2 7 /EU of the European Parliament and of the Council, of 2 5 October 2 0 1 2 , on energy efficiency. This Directive establishes a common framework of measures for the promotion of energy efficiency in order to ensure the achievement of the Union’s 2 0 2 0 2 0 % headline target and to pave the way for further energy efficiency improvements. It lays down rules designed to remove barriers in the energy market and overcome market failures that impede efficiency in the supply and use of energy, and provides for the establishment of indicative national energy efficiency targets for 2 0 2 0 . Its provisions refer to efficiency in energy use (building renovation, energy efficiency obligation schemes, energy audits and energy management systems, metering and billing, etc), to efficiency in energy supply, and to other horizontal provisions (energy services, financing and technical support, and other measures to promote energy efficiency). 4 ) Technological innovation. In this field, first of all the Strategic Energy Technology Plan (SET Plan) should be highlighted1 4 , comprising measures relating to planning, implementation, resources and international cooperation in the field of energy technology in order to accelerate development and deployment of cost-effective low carbon technologies. In the second place, there is Directive 2 0 0 9 /3 1 /EC of the European Parliament and of the Council of 2 3 April 2 0 0 9 on geological storage of carbon dioxide. Carbon Capture and Storage involves capturing the carbon dioxide emitted by industrial processes and storing it in underground geological formations where it does not contribute to global warming. The Directive establishes a legal framework that helps tackle climate change through environmentally safe geological storage of CO2 . Permits are required to use geological storage sites. These sites must be environmentally safe in accordance with the requirements of the Directive. The closing of storage sites is also regulated. Storage sites can be closed A sectorial regulation is Directive 2 0 1 0 /3 1 /EU of 1 9 May 2 0 1 0 on the energy performance of buildings. 14 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 2 2 November 2 0 0 7 entitled: “A European strategic energy technology plan (SET Plan) - Towards a low carbon future” [COM(2 0 0 7 ) 7 2 3 ]. 13 VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 5 9 if there is a substantiated request and if the conditions stated in the permit have been met by the site operator. Once closed, the operator remains responsible for the site until the conditions for transfer of responsibility are met (mainly the condition that the CO2 will be completely and permanently stored)1 5 . 6 . Citizens face to face with environmental policy: access to information, public participation and access to justice in environmental matters Environmental regulation is mainly administrative. This means that it develops from administrative relationships between companies or individuals engaged in activities with environmental effects and the administration that is responsible for regulating and controlling these activities. However, these administrative relationships are open to the participation of citizens so as to satisfy the demands of ‘environmental democracy’ (Bandi 2 0 1 4 ). And this public participation has grown in intensity and has been firmly strengthened by the Aarhus Convention (Pallemaerts 2 0 1 1 ). The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 2 5 June 1 9 9 8 by the United Nations Economic Commission for Europe. The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment: the right of everyone to receive environmental information that is held by public authorities (‘access to environmental information’); the right to participate in environmental decision-making; and the right to review procedures to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general (‘access to justice’). The Decision on the conclusions of the Aarhus Convention by the European Community was adopted on 1 7 February 2 0 0 5 [Decision An approach to the current situation of the regulation of the CSS in the world can be seen in the Workshop Report 2012. 4th IEA International CCS Regulatory Network Meeting (http://www.iea.org/publications/freepublications/publication/WR_ 4 th_ CCS_ Regulatory_ Meeting_ FINAL_ WEB.pdf). For more details see Zillman et al. 2 0 1 4 . The latter contains studies on the legal system in different countries: United Kingdom (McHARG, A., and POUSTIE, M., “Risk, regulation, and carbon capture and storage: the United Kingdom Experience”, pp. 2 4 9 -2 7 4 ); Australia (CROMMELIN, M., “Australian responses to subsurface conflicts: greenhouse gas storage v petroleum”, pp. 4 1 9 -4 3 2 ); Spain (DEL GUAYO, I., and ALENZA, J., “Spain’s approach to new technologies: from underground structures to carbon dioxide storage”, pp. 4 6 4 -4 6 5 ); and China (MINGYUAN, W. and FENG, J., “Carbon capture and storage development in China”, pp. 4 1 9 -4 3 2 ). On Canada see Bankes 2 0 1 2 . 15 160 JOSÉ FRANCISCO ALENZA GARCÍA 2 0 0 5 /3 7 0 /EC]. The EC has been a party to the Convention since May 2 0 0 5 and approved Regulation (EC) 1 3 6 7 /2 0 0 6 on the application of the Convention to Community institutions and bodies. Furthermore, there are two Directives concerning the first and second ‘pillars’ of the Aarhus Convention: Directive 2 0 0 3 /4 /EC of 2 8 January 2 0 0 3 on public access to environmental information and Directive 2 0 0 3 /3 5 /EC of 2 6 May 2 0 0 3 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment. Both Directives contain provisions on access to justice, but also for the third ‘pillar’ the Commission presented a Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters1 6 . a) Access to environmental information. Directive 2 0 0 3 /4 lays down a broad concept of ‘information relating to the environment’. This includes any available information in written, visual, aural or database form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities or measures adversely affecting or likely to affect them, and on activities or measures designed to protect them (including administrative measures and environmental management programmes). The directive imposes on public authorities the duty to spread environmental information and ensure that environmental information is systematically available and distributed to the public. Directive 2 0 0 3 /4 also recognizes the right to request environmental information without the applicant having to state an interest. The deadlines for providing the information are very short: information must be made available to the applicant not later than one month after receipt of the request. Only if the volume and complexity of the information is such that this period cannot be complied with, is a period of two months allowed. Requests for information may be refused only for the reasons set out in the Directive (art. 4 ): the public authority does not hold the requested information; the request is unreasonable; the request is too general; the requested information is in the course of completion; the request concerns internal communications; disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities or of commercial or industrial information, public security or national defence, the course of justice, intellectual property rights, the confidentiality of personal data, the interests of the person who supplied the information on a voluntary basis, or protection of the environment. But where the information relates to emissions into the environment, the request may not be refused by virtue of the exceptions relating to confidentiality. b) Public participation in the drawing up of certain plans and programmes relating to the environment. Directive 2 0 0 3 /3 5 seeks to ensure real and effective public participation: 16 COM(2 0 0 3 ) 6 2 4 . VI. Environmental Policy of the European Union: Toward s High Environmental Protection 1 6 1 1 . Real participation involves the following rules: - Information should be provided about environmental procedures and about the right to participate - Participation should be possible when all options are open. - The types of participation should be effective. - The deadlines for each phase of participation must be reasonable. 2 . Environmental participation must cease to be a mere formality. For this reason, - Participation should take place throughout the procedure; - Participation should be a substantive element of the decision. The duty is established to take account of the results of participation and to inform the public about the decisions taken and the reasons for such decisions. Bibliography Alenza García, J. F. 2 0 1 0 . Desarrollo sostenible. In Los principios juríd icos d el Derecho Ad ministrativo, ed. Juan Alfonso Santamaria Pastor, 1 3 8 8 -1 4 2 6 . Madrid: La Ley-Actualidad. Alenza García, J. F. 2 0 1 2 . Los principios de la política de residuos. In Revista Aranzad i d e Derecho Ambiental 2 3 : 2 1 5 -2 5 8 . Alenza García, J. F. (ed.), 2 0 1 4 . La regulación d e las energías renovables ante el cambio climático. Navarra: Thomson Reuters Aranzadi, Cizur Menor. Bandi, G. (ed.). 2 0 1 4 . Environmental Democracy and Law: public participation in Europe. The Netherlands: Europa Law Publishing. Bankes, N. 2 0 0 9 . Developing a legal regime for carbon capture and storage in Canad a: some reflections based upon a survey of natural gas storage regimes. ISEEE, University of Calgary. Bankes, N. 2 0 1 2 . The legal and regulatory issues associated with carbon capture and storage in Arctic States. In Carbon and Climate Law Review, 6 : 2 1 -3 2 . Davies, Peter G. G. 2 0 0 4 . European Union Environmental Law. Farnham: Ashgate Publishing. García Ureta, A. 2 0 1 0 . Derecho europeo d e la biod iversid ad : aves silvestres, hábitats y especies d e flora y fauna. Madrid: Iustel. Kiss, A. and Shelton, D. 1 9 9 7 . Manual of European Environmental Law. 2 nd ed. Cambridge: Cambridge University Press. Krämer, L. 1 9 9 8 . E. C. Treaty and Environmental Law, 3 rd ed. London: Sweet&Maxwell. Macroy, R. (ed.). 2 0 0 4 . Principles of European Environmental Law. The Netherlands: Europa Law Publishing. Pallemaerts, M. (ed.). 2 0 1 1 . The Aarhus Convention at ten. Interactions and tensions between Conventional International Law and EU Environmental Law. The Netherlands: Europa Law Publishing. Pozzo, B. (ed.). 2 0 0 3 . La nuova Direttiva sullo scambio d i quote d i emission. Milano: Giuffrè. Ruiz De Apodaca, A. (ed.). 2 0 1 4 . Régimen juríd ico d e la evaluación ambiental. Navarra: Thomson Reuters Aranzadi, Cizur Menor. 162 JOSÉ FRANCISCO ALENZA GARCÍA Sanz Rubiales, I. (ed.). 2 0 1 0 . El mercad o europeo d e d erechos d e emisión. Valladolid: Lex Nova. Valencia, J. (ed.). 2005. Estud ios sobre la Directive 2004/35/CE d e Responsabilid ad por Daños Ambientales y su incid encia en el ord enamiento español. Navarra: Aranzadi, Cizur Menor Zillman, D. N., A. McHarg, A. Bradbrook, and L. Barrera-Hernandez (eds.). 2 0 1 4 . The Law of Energy Und erground . Oxford: Oxford University Press. C H A P T E R VII SOME REFLECTIONS ON THE NOTION OF “LANDSCAPE” IN DOMESTIC AND INTERNATIONAL LAW Maria Immord ino SUMMARY: 1 . Introductory remarks. –2 . The notion of landscape in the Constitution. –3 . The turning point: Law 4 3 1 of 1 9 8 5 . –4 . The notion of landscape in international law. –5 . Follow-up: the European Landscape Convention. –6 . The landscape in the Cultural Heritage and Landscape Code. –7 . The Landscape in the new art. 1 1 7 of the Constitution and the issue of the allocation of legislative functions. –8 . Final considerations. 1 . Introd uctory remarks The notion of landscape and the relevant issues concerning its safeguarding are a complex subject, involving manifold problems. For example, there is the conflict of both public interests (sometimes of equal level and value) and private ones (almost always of an economic nature); the problem of the allocation of competences among the State and autonomous territorial entities, as well as the connected problem of the plurality of sources of law (international laws included) and their coordination, which can sometimes be difficult; the relation of bordering subject-matters, such as those referable to ‘territorial governance’; and environment and cultural heritage, and the problems thereof, ascribable to the individuation and the establishment of boundaries The problem of identifying a coherent notion of landscape has interested sciences and knowledge different from the juridical sphere, which have failed to highlight the plurality of dimensions –and of values –raising some re-ascending queries that are nevertheless still waiting for some satisfactory answers (Barbati 2 0 0 7 ). It is not a coincidence, in fact, that when referring to the concept of landscape, jurists talk about polysemy (Carpentieri 2 0 0 4 ), and geographers of ‘semantic plasticity’. When repeatedly facing the different profiles intrinsic to the safeguarding and enhancement of the landscape, the jurist never provided (at least until the 2 0 0 4 Code) a definition of landscape. The same happened in international law; indeed, the Community legislator only 164 MARIA IMMORDINO provided its complete definition in the European Landscape Convention of 2 0 0 0 for the first time. The laws made before the Unification of Italy lack any reference to the landscape –from the one on the conservation of the pinewood of Ravenna (1 6 th July 1 9 0 5 , No. 4 1 1 ), to law No. 1 4 9 7 of 1 9 3 9 on ‘environmental amenities’, but even before law No. 7 7 8 of 1 9 2 2 on the safeguarding of the beauties of nature and real properties recognized as having special historic interest. Yet, the connection between nature and human history is referred to in all of them (in a more or less explicit way); today this determines the proprium of the landscape notion, as will be shown further on. Although the law of 1 9 3 9 –whose contents are due to the former Minister Bottai –revolved around the perspective of the ‘beauty of nature’ and was set forth in order to protect only those features qualified as ‘natural beauties’ or ‘uniqueness’, its implementing regulation traced the aesthetical and traditional value of the ‘global beauties’ back to ‘spontaneous concurrence and merging of nature and human work’ (Art. 9 ). The foregoing law of 1 9 2 2 , whose draft law was presented to the Senate by former Minister of Public Education Benedetto Croce, is on the same line of thought. On one hand, it generally represents the first instrument in Italian history to defend nature, and, more in particular, the juridical basis for the foundation of the first national parks, thus associating the conservation of real properties with ‘the civil and literary history’ of the country. On the other hand, it clearly felt the effects of the ideas of the Abruzzi philosopher, who was sensitive to the most advanced requests of European culture. However, with hindsight, the connection between nature, history, and civilization of a population was already present in the 1 9 0 5 law on the conservation of the Predieri pinewood. Former Minister Rava, to whom the contents of the law are due, highlighted ‘worship of civil remembrances’, which manifested themselves ‘in all parts of the native land’. He referred to rivers, waters, woods, coasts, and mountains that “age-long traditions associated with moral behaviours and political occurrences of a great country”, thus not only to “solemn works hallowed in marble and bronze”. An explicit reference to ‘landscape’ can be found in Art. 9 of the Constitution of 1 9 4 9 , among the fundamental principles, connecting protection of the landscape with cultural development as an unavoidable evolutionary condition of civil society. In the constitutional tissue, the preservation and enhancement of a common good, such as the landscape, are expressions of spiritual and cultural interests, thus allowing their use and enjoyment in order for people to realize and elevate their aptitudes. This is the reason why protection is a task left by the Constituent Legislator to the Republic in all of its different articulations, local authorities included, therefore being well in advance on the European Convention of 2 0 0 0 , thus forcing the VII. Some Reflections on the Notion of ‘Land scape’ in Domestic and International Law 165 Signatory States to implement it in compliance with the principle of subsidiarity (Art. 4 ). Implementation is left to the Ordinary Legislator, so that the objects, the size of the asset to protect, as well as the consequent procedures, are left to his or her contingent choices. During the course of the years, the Legislator has shown a constant trend to enlarge the object, both in line with constant growing knowledge on the destructive consequence on the landscape (due to uncontrolled and disordered economical development that started with the economic boom during the Fifties), as well as with an evolutionary interpretation of the constitutional laws referring to concepts and notions that transpired after its writing. 2 . The notion of land scape in the Constitution Nevertheless, the Constitution does not define the landscape, thus opening a debate on this notion from multiple approaches on opposing sides within the best doctrine, especially during the Seventies. According to a theory worked out by Sandulli (Sandulli 1 9 6 7 ) and endorsed by the Constitutional Court (Judgement No. 1 4 1 /1 9 7 2 ), the notion of landscape should be deduced from the legislation existing at the time of the constitutional drafting. In virtue of a petrified interpretation of it, the concept of landscape is brought into line with that of natural beauty quoted in law No. 1 4 9 7 of 1 9 3 9 . Therefore, the “only protection goals are the landscape values with regard to the arising natural contexts”, thus excluding nature per se, that is to say flora and fauna. According to this theory, placing Art. 9 among the fundamental principles of the Constitution would mean simply the expression of ‘a static idea of mere conservation’ regarding protection, with consequent exclusion of the effectiveness of valorisation from its scope (Berti 1 9 7 1 ). This theory has been criticized for its systematic profile, as it does not take into account the autonomy of the constitutional language compared to other different sources (Silvestri 1 9 8 9 ). It also came in for criticism for its system of content; for the insufficiency of the notion of natural beauty in expressing the human role, which is an ‘authentic protagonist’ (Galasso 1 9 6 4 ) in the creation of the landscape; and also because it neglects the link between landscape protection (referred to in Art. 9 , ph. No. 2 ), development of culture (referred to in Art. 9 , ph. No. 1 ), and, as a consequence, the cultural demand expressed by the landscape protection function (Immordino 1 9 9 5 ). This request is linked to acknowledgement of social entities, which, by virtue of the guarantee granted by the Constitution, emerge as a crucial point of cultural and spiritual values that are expressed by human beings. Thus, it leaves its mark on the territory, which becomes the evident witness of its human story. At all events, it is sure that the theory matching the constitutional notion of landscape with that of natural beauties is grounded on a reductive interpretation of the 1 9 3 9 law. According to the latter (as 166 MARIA IMMORDINO emerges from its implementation rules too), the notion of natural beauties has a wider meaning if compared to the interpretation of administrative praxis and decisions of Courts. It is the Courts’ opinion that the ‘public interest’ pursued by the law collides with the ‘aesthetic’ interest, meaning the interest of “pleasure derived from natural beauties, considered to be a means of education, refinement of taste, and aesthetic sense”, as well as, more in general, as a means of satisfaction of spiritual interests. Nonetheless, if it is true that the aesthetical-landscape value is the prevailing element for acknowledging natural beauties, it is also true that within the same law and implementing regulations the protection of some assets was linked to their aptitude to satisfy interests different from the merely aesthetic one. These can include ‘scientific interest’ (with regard to geological peculiarities); the value of ‘rarity’ (with regard to configuration of land, waters, and vegetation), ‘the character and importance of the flora’ (with regard to the flora present in villas and gardens), the ‘socio-historical’ interest (with regard to whole real estates), and ‘public usability’ (with regard to point of view and belvedere). Hence, assets are characterized for being the expression of an aesthetical value, but also of ‘historical, cultural, natural, morphological, and aesthetic values of the territory’. These assets are listed in Art. 1 4 2 of the Code –as will be shown further on –and protected by Art. 2 for being landscapes expressing the ‘cultural heritage’ of the Nation. Otherwise, according to the theory of A. Predieri, the landscape protected by the Constitution collides with the “form of the territory or of the environment created by the settled community, in a continuous interaction between nature and human beings”. The landscape is hence the ‘visible appearance of the environment’, qualified and conformed by human presence, a dynamic and historicized form of all the national territory (Levi 1 9 7 9 ). The outcome is the established correspondence –according to the ‘inclusive town-planning’ typical of the Seventies –of landscape protection and town planning as global and integrated management of the territory, in line with the interpretation given by the legislator in Art. 8 0 , Decree No. 6 1 6 /1 9 7 7 . This theory met strong opposition from the Constitutional Court (among others, judgement No. 2 3 9 /1 9 8 2 , No. 3 5 9 /1 9 8 5 , No. 1 5 1 /1 9 8 6 ), which constantly highlighted the clear distinction of landscape protection and town planning. In this way, the judge speeded up the process of separation of the notion of landscape of landscape from other issues. 3 . The turning point: Law 431 of 1985 Law No. 4 3 1 of 1 9 8 5 opened up the debate on the juridical notion of landscape again, although it mentions neither the landscape, nor any landscape assets, but only contains a reference to environmental interest in its title. VII. Some Reflections on the Notion of ‘Land scape’ in Domestic and International Law 167 Nevertheless, there is no doubt that the inspiring principles of this law have sealed the evolution of laws, as well as the doctrinal and jurisprudential debate on the juridical notion of landscape, and on its preservation and enhancement. These principles, in hindsight, have been at least partially adopted by the current lawmaker of the Code of cultural heritage and landscape. Law No. 4 3 1 marked a turning point of this trend –as widely requested by numerous sectors of civil societies (Settis 2 0 1 0 ) –regarding the process in place hitherto of transformation and indiscriminate urbanisation of the territory even of those parts considered to have an elevated landscape and cultural value. Rather than a general law on environmental protection, lacking a judicial value, as the media presented it at that time, it was a law on landscape protection. Neither was it a general law, as it appeared to be according to a judgement of the Judge of the Law (judgement No. 1 5 1 /1 9 8 6 ) according to whom law No. 4 3 1 aimed at protecting the landscape marked by ‘entirety and totality’. Law 4 3 1 considerably extends the landscape constraint, which ceased to be a single measure to be implemented through an administrative order aiming at protecting ‘natural beauties’, and became a measure preserving assets and areas characterizing the geographical structure of the national territory. The legislator can identify them in force of their ‘environmental interest’, thus expanding the notion of ‘natural beauty’. In spite of this unquestionable quantitative extension, broad portions of the territory –such as urban landscapes and suburban areas –remained excluded from the constraint (Libertini et aL 1 9 8 6 ). Consequently, it would not seem appropriate to define law 4 3 1 as a law for the general protection of the landscape. By contrast, Judgement No. 1 5 1 /8 5 can be interpreted as follows: the constraint implemented through law was preceded by a global analysis of the territory, which led to selection of areas of high landscape value compared to normal areas that were excluded from the constraint. Law No. 4 3 1 changed the landscape constraint provided by the law of 1 9 3 9 in terms of quality as well. Art. 1 shows that the traditional ‘aesthetic’purpose of the constraints have been enriched by other meanings, even though, as mentioned before, some of them were already implicit in the law of 1 9 3 9 and in its implementing regulation. The traditional notion has consequently been affected by it. In fact, law No. 4 3 1 identifies the proprium of the landscape notion in its historical and, and hence cultural, identity value. This will be a constant in all the following legislation up to the Code in its current version, including in the European Landscape Convention. To a certain degree, it is a return to the past. This interweaving of nature and human work as a connotation of the landscape –as has already been shown – was already explicit in the implementing regulation of the law of 1 9 3 9 (Art. 9 ). It was also implied in the legislation of the beginning of the nineteenth century, for example in the previously mentioned law of conservation of the Ravenna pinewood. The latter represented for the 168 MARIA IMMORDINO former Minister Rava (who was promoting its adoption) the first step for a subsequent issuing of a law aiming at “preserving natural beauties related to Italian literature, arts, and history”. As the Constitutional Court has demonstrated, in law No. 4 3 1 the landscape constraint is not grounded on the aesthetical-cultural interest only. The landscape is protected for its historical and identity value, and as an ethical-historical value precisely for being a human work on nature (Barbati 2 0 0 7 ). The law projects landscape protection on urban planning. Nevertheless, as Art. 1 bis states (equivalence of landscape and urbanterritorial levels), the law only traces out the notion of landscape as a ‘dynamic form of the territory’ in line with Predieri’s theory, so that the community perception of the territory and of the visible appearance of the environment have both an emotional and a cognitive function. In this sense, the landscape is a collective work, the outcome of the spontaneous and sometimes anonymous work of an entire population. Therefore, it is the mark of the civilizations that have followed one another during time on the same territory. In this perspective, it dynamically manifests the relation that is historically entailed between the community and the territory. Therefore, in law No. 4 3 1 , the landscape is not only a geographical entity, but also a historical one. The historical value does not go beyond, but integrates, the aesthetical-cultural character referred to by the Constitutional Court, which is the ground for the peculiarity of landscape assets starting from the law of 1 9 3 9 –as I have already stated. Croci’s theory, separating the aesthetical value from the cognitive value – interpreted as different and non-communicating dimensions of the human spirit –is overcome; whilst the aesthetical judgement is nothing more than a set of sentimental and imaginative behaviours enclosing many cognitive processes (Libertini et al. 1 9 8 6 ). In this manner, cultural attention, development of knowledge, and aesthetical appreciation evolve steadily in step with one another. This emerges from the consolidated process of “aesthetical positivization” of nature in all of its components: from the movies where nature and its different manifestations (tornadoes, volcanic eruptions, earthquakes, etc.) are the protagonists, to those where animals are the protagonists –if once they were considered to be awkward and grisly, they are currently enhanced for their ‘elegant’ and ‘harmonious’ behaviours (Libertini et al. 1 9 8 6 ). According to the Constitutional Court (judgement No. 1 5 1 /8 6 ), this is the notion of landscape adopted by law 4 3 1 , where the landscape, being the expression of history, culture, and consequently of human work on nature, is represented in line with the Constitution as a primary value of regulations. It is a cultural-ethical value (Judgement No. 3 4 1 /1 9 9 6 ), and it is the manifestation of the relation that is historically set out among a morphological reality and human beings, among territory and society, being in this sense the expression of the cultural identity of the whole national community. VII. Some Reflections on the Notion of ‘Land scape’ in Domestic and International Law 169 This ethic-cultural dimension of the landscape emerges a long time in advance from the provision of Art. 1 3 1 , ph. 2 , of the Code, constituting an established fact of Italian juridical experience. The Consolidation Act of 1 9 9 9 , like law No. 4 3 1 , did not contain an explicit notion of landscape, but included among the environmental assets referred to in Art. 1 3 8 both landscape assets under constraint in force of an administrative order (pursuant to law 1 4 9 7 /3 9 ), and those directly under constraint by application of law 4 3 1 /8 5 . The Consolidation Act showed the legislator’s will to embrace the principle –ratified by the Constitution (Art. 9 ) and positivized by law No. 4 3 1 –of the culturalidentificatory character of the landscape, whose protection and enhancement contribute to preserve the national community’s memory and to promote cultural development. 4 . The notion of land scape in international law The latest version of Art. 1 3 3 of the Code introduced by Legislative Decree No. 6 3 in 2 0 0 8 , renumbered as Art. 1 3 2 , contains a reference to international conventions on landscape preservation and enhancement. Our legislator must comply with it once the aforementioned conventions enter into force in Italy (Starita and Bottino 2 0 1 2 ). Numerous international treaties refer to the landscape, even though this term is provided with different meanings, making it difficult to have a unitary juridical notion of landscape in this context as well. In spite of this, the common element among the different definitions of landscape used in international law appears to be found in the cultural element that any landscape has for being an expression of the human story. The evolution of the landscape notion in international law reflects in some respects the evolution of the same notion within national legislation. The Regional Convention of Washington (1 9 4 0 ) for the conservation of nature and wildlife in the Western hemisphere limits protection to areas showing ‘superlative sceneries’. There is no need to stress the link with the notion of ‘natural beauties’, The Regional Convention of Apia (1 9 7 6 ) has the same line of thought; in fact, it protects the beauty of nature and especially ‘natural landscape of great beauties’. The will to protect these assets is implied in force of their aesthetical aspects, that is to say being panoramic beauties, but also for their ability to satisfy spiritual needs, such as cultural interest. This cultural value is more emphasized in those conventions protecting the heritage resulting from a correlation of historical, artistic, archaeological, as well as naturalistic characteristics (such as the UNESCO Convention, 1 9 7 2 ), or ‘architectural landscapes’ (Convention of Granada, 1 9 8 5 ). According to a second interpretation that was established during the Seventies, the landscape notion merges with that of environment, thus receiving indirect protection through laws originally intended to preserve 170 MARIA IMMORDINO the natural environment. Many examples can be found, among which the Ramsar Convention of 1 9 7 1 , which aimed at preserving wetlands of international importance, and the Berne Convention of 1979 on preservation of wildlife natural habitats. There are also many conventions on preventing environmental damage and on assessment of environmental impacts caused by human intervention in cross-boarder areas that mention the landscape. Among these are the Espoo Convention of 1 9 9 1 , the Helsinki Convention of 1 9 9 2 , European Directives (8 5 /3 3 7 /CEE, amended by Directive 91/11/CE; 2001/42/CE), which have as their main object the environmental impact assessment of private and public works (where the landscape must be taken into consideration during the relevant procedure). There are also international documents, such as the Aarhus Convention of 1998, referring to landscape acknowledging the existence of environmental rights like access to information at hand in the proper offices. The doctrine (Starita and Bottino 2 0 1 2 ) has stressed the fact that the references to landscape contained in documents having environmental protection as their object did not affect the cultural value of the notion. This is because the landscape represents the aesthetical-cultural component of the environment as the visible appearance of the territory resulting from human and natural work. The other meaning of ‘landscape’ in international law originated from the European Convention on landscape signed in Florence 2 0 0 0 . The landscape takes on an identity meaning for being “an essential component of people’s surroundings, an expression of the diversity of their shared cultural and natural heritage, and a foundation of their identity” (Art. 5 ). The Florence Convention confirms the cultural value that in a more or less explicit way is implied in the different interpretations of the landscape notion emerging from international treaties. 5 . Follow-up: the European Land scape Convention The European Convention of 2 0 0 0 (ratified by law No. 1 4 /2 0 0 6 ) represents a moment of great importance for the positivization process of the juridical notion of landscape. This Convention was adopted following the inputs deriving from the so-called “Dobris” report of 1 9 9 1 and the document known as “Parks for life” adopted in 1 9 9 5 by the International Union for Conservation of Nature. These documents stressed the vocation of the European Council for promoting ideas and common values among the Member States. As already stated, international agreements already existed, for example the Bern Convention of 1 9 7 0 and the Granada Convention of 1 9 8 5 , which only regulated specific aspects, such as protection of natural life and the environment, and protection of the European landscapearchitectural heritage respectively. But the Convention constitutes the first international document on a globally conceived environment (M. Dejeant-Pons), and contains a VII. Some Reflections on the Notion of ‘Land scape’ in Domestic and International Law 171 definition of landscape as “an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors” (Art. 1 , ph. A). The idea underlined by the Explanatory Report is that “a landscape forms a whole, whose natural and cultural components are taken together, not separately” (item 3 8 ). The Convention is grounded on two principles, thus clearly aiming at “revolutionizing the way of conceiving and administrating the landscape” within the Member States through involvement not only of central government, but also of local government entities as well as the resident populations (Drigo 2 0 1 0 ). The first principle is an objective and all-inclusive ideal of landscape founded on a direct correlation of landscape and territory, thus consequently overcoming those opinions according to which the landscapes to be protected are only those expressing important values. According to the Convention, a landscape is the whole territory under the sovereignty of the signatory countries, even if it is degraded or lacking any specific characteristics (regardless of its intrinsic value). Therefore, the relevant notion is extended so that it includes natural, urban, rural, peri-urban areas, as well as ‘land, inland water and marine areas’. The Convention’s landscape is worked out according to different interpretations, having no bearing on the idea of ‘excellence’ and covering landscapes lacking any worth or affected by degradation and abandonment. The introduction of a perspective grounded on a plurality of landscapes does not exclude a unitary concept of landscape that is (as stressed by the doctrine) confirmed by the reference to the principle of landscape integration in urban and planning policies, with cultural, environmental, rural, social, and economical policies (Cartei 2 0 0 8 ). The second principle is a personal-subjective idea of landscape that must be valued according to the perceptions that the resident population have of it. Therefore, territory areas presenting exceptional characteristics are not the only ones to be entitled to be protected as landscapes, but also everyday landscapes, even if deteriorated. The notion identifying the proprium of natural and/or human factors, and their interaction, re-emerges and is confirmed. In this respect, the Convention binds the signatory States “to recognise landscapes in law as an essential component of people’s surroundings, an expression of the diversity of their shared cultural and natural heritage, and a foundation of their identity” (Art. 5 , ph. 1 ). It also binds each Party to identify its own landscapes throughout its territory and manage its transformations (Art. 6 , letter C). This specific relation between resident populations and their landscape consequently postulates their active involvement and participations in decision-making affecting them, as well as a democratic protection system involving regional and local authorities (apart from events of national and international relief). In line with the principle of subsidiarity, public responsibility regarding landscape preservation, 172 MARIA IMMORDINO management, and enhancement are devolved to regional and local authorities (Priore 2 0 0 7 ). Hence the Convention does not refer to populations only, but also to the single person, in light of the fact that the landscape is “a key element of individual and social well-being”, so that its protection, management, and planning entail “rights and responsibility for everyone”. Thus, special measures are enacted by signatory states to increase awareness and create an actual landscape conscience in local populations through enhancement of the cultural and economical value of landscape (Drigo 2 0 1 0 ). Landscape, being the human dimension of the whole territory, must be protected and enhanced not only for being an asset per se, but also for its identity-cultural value that is present in the context where men take roots and develop their own existence. As a general expression of man’s history, the landscape is a cultural fact, even though the Convention does not mentions this adjective when giving its definition (maybe to highlight its difference from the other documents, such as the UNESCO Convention of 1 9 9 2 that uses the expression ‘cultural landscape’). In fact, the latter operates on a global level identifying those landscapes having an ‘extraordinary interest’ and being classified as world heritage, while the former operates on a regional level in order to protect the entire territory under the sovereignty of the signatory States by recognizing its landscape value (Priore 2 0 0 7 ). For its binding character, the Convention innovated the traditional notion of landscape within the Community legislation, as well as, for some aspects, for the signatory states. On one hand, it gave the landscape autonomy from other contingent issues, such as the environment; on the other hand, it freed the landscape from that specific judgement of aesthetical value, which traditionally represented the grounds for its protection. However, such a wide notion of landscape referring to the whole territory, as stressed by the doctrine (Carpentieri 2 0 0 4 ), risks depriving of a real content the establishment of landscape as part of nations’ cultural heritage –which is the idea that emerged from the Consolidation Act of 1 9 9 9 and is adopted by the Code in its current version. 6 . The land scape in the Cultural Heritage and Land scape Cod e Since its first writing in 2 0 0 4 (Art. 1 3 1 , ph. 1 and 2 ), the Code has provided a juridical notion of landscape, defined as a ‘homogenous’ part of the territory whose characteristics are derived from nature, the history of humanity, and from their reciprocal interrelationships. Hence, the landscape is the synergy of the human-nature relation and the relevant interactions, able to characterize parts of the territory. Landscape protection and enhancement safeguard the values that a landscape expresses in terms of ‘perceptible identifying manifestations’ as perceived by local populations. VII. Some Reflections on the Notion of ‘Land scape’ in Domestic and International Law 173 The reference to the European Convention of 2 0 0 0 is self-evident, although the Code departs from the Convention because the landscape does not correspond to the entire national territory, but only represents a part of it. It is that part where the combination of man and nature is linked to the history of humanity, so that the landscape falls within a wider genus of our cultural heritage. The solution preferred by the Code is to be found in an intermediate position among all positions taken during time by the doctrine –which have been briefly mentioned. That is to say, it is a position lying between the obsolete aesthetical idea of landscape (very restrictive to the extent that it lessens the aesthetical factor to a contemplative dimension of some territorial areas that become natural paintings) and its opposite, according to which landscape is the visible form of territory of environment when men develop their own existence. Furthermore, in its original version it does not include the notion of environmental asset in light of the fact that this notion is merged with the definition of landscape. In other words, the legislator renounced the juridical distinction of landscape and environment, meaning that he expressed a clear preference for landscape seen as cultural heritage, whose discipline is associated with the field of cultural heritage (Immordino and Cavallaro 2 0 1 2 ). The original version of Art. 131 was completely rewritten by Legislative Decree No. 6 3 /2 0 0 8 , Art. 2 , letter A. As a result, the notion of landscape was modified too: as the first two articles state, it is no longer a homogeneous part of the territory, but it is “the territory expressing identities whose characteristics are derived from nature, the history of humanity, and from their reciprocal interrelationships”. But the greatest novelty consists in the withdrawal of the provision according to which the landscape is protected for being the expression of values that are “perceivable manifestation of identities”, and only referring to “those aspects and characteristics constituting the material and visible representation on national identity, as an expression of cultural values”. The legislative choice to cancel the importance of landscape, as a perceivable manifestation of identities of those populations interacting with it (according to the provisions of the European Convention too), raised some doubts in the doctrine. This happened in reason of the fact that the identity of a landscape is now “completely left to the work of politicians and technicians (or both), thus excluding the consolidated perception of a population”, which in the original version represented the ‘fundamental criterion’ (Marzuoli 2 0 0 8 ). According to this theory, in excluding the local population from the decision-making process on landscape matters, this new regulatory statement lends itself to a double interpretation: either the landscape is the totality of cultural values belonging to a portion of territory which are able to express the national identity; or, on the contrary, the landscape is only that part of the territory able to express a national identity through some common values (as if there were cultural values that are unable to express the national identity and therefore do not deserve protection). 174 MARIA IMMORDINO I believe that, in order to avoid the risk of such a strict interpretation, it would be more expedient to keep the original definition of landscape seen as a mutual relation among men and nature, able to express cultural values representing the national identity. This point of view can already be found in law No. 4 3 1 . Within the general notion of landscape, the Code (Art. 1 3 4 ) sets out the land scape assets (for being the specimen of the landscape genus), whose intrinsic and extrinsic values must be protected. Furthermore, it also identifies the proceedings through which this bound must be enforced (V. Mazzarella). These assets are those defined by the Consolidation Act of 1 9 9 9 , Art. 1 3 9 , as ‘environmental assets’. The decision to define them as ‘landscape assets’ is in line with the juridical notion of landscape referred to in the previous Art. 1 3 1 . Art. 1 3 4 has a mere classifying character; it lists the environmental assets, but it leaves it to other articles of the Code to identify them. The listed environmental assets include the following: immovable properties and areas of ‘notable public interest’ in force of an administrative order (pursuant to law 1 4 9 7 /3 9 ); immovable properties having a ‘historical memory’ in force of the amendments to the aforementioned Legislative Decree of 2 0 0 8 ; and ‘monumental trees’. Furthermore, the Legislator has recently added historical centres to immovable properties characterized by ‘aesthetical and traditional value’ in place of the former provision that included the ‘areas of archaeological interest’. Lastly, it must be stressed that ‘panoramic beauties’ should not be ‘considered as paintings’ anymore, as the legislator has abrogated this sentence. Areas and assets directly identified by the law (No. 4 3 1 /8 5 ) and indicated by Art. 1 4 2 are included in the list. Finally, Art. 1 3 4 renews the system, establishing a third category of landscapes, that is to say assets and areas qualified as landscape assets by new or conformed landscape plans. 7 . The Land scape in the new art. 117 of the Constitution and the issue of the allocation of legislative functions Art. 1 1 7 of the latest version of the Italian Constitution does not expressly refer to landscape, so much so that the doctrine (Civitavese Matteucci 2 0 0 3 ) has put forward a theory on the possible attribution of the residual legislative power to the Regions, thus ousting the State. The uncertainties on the constitutional collocation of landscape within the new Art. 1 1 7 and those referring to the distribution of the legislative functions between State and Regions were grounds for the Court to take up the juridical “notion” of landscape again. As a matter of fact, the judge over the years has considerably contributed to the identification of the juridical notion of landscape through a differentiation from other similar matters, especially from town planning (Judgement No. 2 3 9 /1 9 8 2 ). VII. Some Reflections on the Notion of ‘Land scape’ in Domestic and International Law 175 Through a systematic connection of landscape and environment notions, the preservation of landscape was brought back under the exclusive power of the State by Judgement No. 3 6 7 /2 0 0 7 , which lists the ‘preservation of environment and ecosystem’ (Art. 1 1 7 , ph. 2 , letter S) so that the landscape becomes the ‘shape and appearance of the environment’. Thus, there is a clear return to Giannini’s theory, which singles out three different interpretations of the environmental notion: environment as landscape, as ecosystem, as town planning. According to the Court, the landscape –as ‘perceived’ –indicates the ‘morphology of the territory’ and relates to ‘the environment in its appearance’. In this respect, “it is the territory’s appearance itself –in light of the environmental contents –that represents a cultural value”. Consequently, the abstract notion of natural beauties is no longer the object of the preservation, but “it is all the, tangible properties and their composition on a territory, defining its historical and geographical configuration”. By bringing back the landscape to the environment, the Court confirms its consolidated orientation (Judgements No. 1 9 6 /2 0 0 4 ; No. 3 5 9 /1 9 8 5 ). If the landscape is the shape of the territory, then it is not possible to separate the landscape value from the urban one. These two dimensions must be kept separate. The Republic protects the landscape, which is a common good, thus granting the equality and democratic nature of the system. Since the Eighties, the Court has launched an orientation toward the primacy of the landscape value (Judgements No. 9 4 /8 5 ; 3 5 9 /8 5 ; 1 5 3 /8 6 ) as a supra-regional value. This orientation was confirmed in subsequent case law. It should also be noted that this primacy must not be intended as the predominance of the landscape value over other interests, because among the fundamental principles (where the constitutional protection is located –Art. 9 ) there are some that could easily conflict with the needs of landscape protection. The right to work is an example. In addition, interests possibly in contrast with the need of landscape protection can be found in Art. 9 itself. The development of scientific and technical research is another example. However, this is not everything. There are other values and individual rights such as the right to health, or national defence requirements, which cannot be considered as subordinate to landscape protection. The statement of the Court must then be understood as follows: the landscape interest must be adequately thought through and adapted to other public interests involved in all territorial transformation, and with equal terms in relation to any other involved interest. Afterwards, the Court itself (Judgement 1 9 6 /2 0 0 4 ) then clarified that this primacy “does not legitimate an absolute primacy in a hypothetical hierarchy of the constitutional values, but it originates the need for their systematic acknowledgement in the actual balance implemented by the ordinary legislator and the public administrations”. 176 MARIA IMMORDINO In the aforementioned judgement No. 3 6 7 /2 0 0 7 , the Court added the qualification of ‘absolute’ to the previous ‘primary’, thus echoing an older judgement of 1 9 8 7 (No. 1 6 1 ) where, in defining the environment as a value, the hendiadys ‘primary and absolute’ is stated. This addition could indeed suggest a turning point, considering the fact that in its jurisprudence on the environment the qualification of primacy was intended as predominance of the landscape value over interests not having the same constitutional importance, but also as a possible balance with other primary values. This is all the more true in light of the fact that in the abovementioned Judgement No. 1 9 6 /2 0 0 4 (on building amnesty) the Court affirmed that the primacy of the landscape value must not be seen as absolute in an eventual range of constitutional values. Now, the imposition of the ‘absolute’ character of the landscape value (lacking any illustration) on one hand allowed the Court to clarify the issue of the State’s exclusive power over landscape protection (Judgement No. 3 6 7 /2 0 0 7 ). This dimension assumed a ‘weak’ connotation by means of the Court’s judgements on the transversality of the environment (Cecchetti 2 0 0 3 ). By contrast the Court, when issuing Judgement No. 3 6 7 , in acknowledging the State, went beyond the mere establishment of protection standards to be implemented on the whole territory, thus giving more meaningful and incisive contents to the exclusive legislative power which assumes a ‘strong’ connotation (Immordino 1 9 9 1 ). On the other hand, this statement seems to only have strengthened the primacy (as traditionally understood by the Court) and to have reasserted even more strongly the supremacy of the landscape value –which is the expression of cultural and spiritual values –over other interests, such as the economical one, that are not listed among the primary constitutional values. Furthermore, the aforementioned statement of judgement No. 1 9 6 /2 0 0 4 –which ties in one of the least incisive decisions on the protection of landscape value –if read in its whole context, does not deny the former case-law orientation. In fact, it also recalls the need for a balance with other values of ‘fundamental constitutional importance’ (such as human dignity, work and housing) within the decision-making process where the discretionary will of political and administrative choices is expressed 8 . Final consid erations The current notion of landscape, which established itself also considering the influences of the European Landscape Convention of 2 0 0 0 , is wide and complex. It is the outcome of a continuous evolution, marked by some steps further and some steps backwards. As has been stated, if the landscape is the evidence of the cultures of the populations that have succeeded one another in time on a specific VII. Some Reflections on the Notion of ‘Land scape’ in Domestic and International Law 177 territory, then the whole territory is landscape, even if with different values. Hence, natural, urban, rural, peri-urban spaces are important, decayed ones included. As the Cultural Heritage and Landscape Code states, the landscape is a territorial dimension consisting in the following: prescribed assets, landscape assets, and unprescribed assets that, if relevant, are identified by the Landscape Plans. It was found that it is a value, and therefore it has a prime importance in the governance dimension of urban planning, but also interacts with it, so much so that it must be protected by urban planning policies too. The national and international regulatory evolution provides us with a broader notion than in the past, from which there derives a historicalcultural dimension, but also and especially an ethical dimension. The latter derives from the fact that the landscape is the outcome of the mutual interaction of man (or better, the community) and nature, thus drawing attention to the responsibility for the relevant choices. Individual and political choices can either be respectful of the landscape value of a specific territory, or bring destruction to those landscapes expressing the identity of a context where men settle and live. Bibliography Amorosino, S. 2 0 1 0 . Introd uzione al d iritto d el paesaggio, Roma-Bari: Laterza. Angiuli, A. and V. Caputi Jambrenghi (eds.). 2 0 0 5 . Commentario al Cod ice d ei beni culturali e d el paesaggio, Torino: Giappichelli. Barbati, C. 2 0 0 7 . Il paesaggio come valore etico culturale. Aed on 2 . Berti, G. 1 9 7 1 . Recensione a Predieri. RTDP: 1 1 4 8 -1 1 6 2 . Cammelli M. (ed.) 2 0 0 7 . Il Cod ice d ei beni culturali e d el paesaggio, 2 nd ed. Bologna: Il Mulino. Carpentieri, P. 2 0 0 4 . La nozione giuridica di paesaggio. Rivista trimestrale d i d iritto pubblico: 3 6 3 ff. Cartei, G. 2008. Codice dei beni culturali e del paesaggio e Convenzione europea: un raffronto. Aed on 3 . Cecchetti, M. 2 0 0 3 . Legislazione regionale e statale per la tutela dell’ambiente: niente di nuovo dopo la riforma costituzionale del Titolo V?. Regioni: 3 1 2 ff. Civitavese Matteucci, S. 2 0 0 3 . Il paesaggio nel nuovo Tit. V, parte II, della Costituzione. RGA: 2 3 5 ff. Crosetti, A. and D. Vaiano. 2 0 0 9 . Beni culturali e paesaggistici. Torino: Giappichelli. Dejeant, M. and M. Pons. n. d. The implementation of the European Landscape Convention. <http://www.unifi.it/ri-vista/0 4 ri/pdf/0 4 r_ 1 _ dejeant-pons_ paper.pdf> Dematteis, G. 1 9 9 5 . Progetto implicito. Il contributo d ella geografia umana alle scienze d el territorio. Milano: D’Angeli. Drigo, C. 2 0 1 0 . Tutela e valorizzazione del paesaggio. Il panorama europeo. Consulta online. Fantini, S. 2 0 1 5 . Il centro storico come bene paesaggistico a valenza culturale. Aed on 2 . 178 MARIA IMMORDINO Galasso, G. 1 9 6 4 . Storia del paesaggio e storia della civiltà agraria. Nord e Sud 5 2 : 9 0 ff. Giannini, M. S. 1 9 7 3 . “Ambiente”, saggio sui diversi suoi aspetti giuridici. In Rivista trimestrale d i d iritto pubblico 1 : 1 5 -3 1 . Immordino, M. 1 9 9 1 . Vincolo paesaggistico e regime d ei beni. Padova: Cedam. Immordino, M. 1995. Paesaggio (tutela del). Digesto d elle Discipline Pubblicistiche XV: 5 7 3 -5 9 2 . Immordino, M. 2 0 0 8 . La dimensione “forte” della esclusività della potestà legislativa statale sulla tutela del paesaggio nella sentenza della Corte costituzionale n. 3 6 7 del 2 0 0 7 . Aed on 1 . Immordino, M. and M.C. Cavallaro. 2 0 1 2 . Commento agli artt. 1 3 1 e 1 3 4 . In Cod ice d ei beni culturali e d el paesaggio, ed. M. A. Sandulli, 9 8 3 -1 0 2 1 . Milano: Giuffrè. Leone, G. and A. L. Tarasco (eds.). 2 0 0 6 . Commentario al Cod ice d ei beni culturali e d el paesaggio. Padova: Cedam. Levi, F. 1 9 7 9 . La tutela d el paesaggio. Torino: Utet. Libertini, M., S. Aleo and M. Immordino. 1 9 8 6 . Tutela dell’ambiente. Legge 8 agosto 1 9 8 5 , n. 4 3 1 . Le nuove leggi civili commentate 5 /6 : 9 0 1 ff. Marini, S. 2 0 0 2 . La Corte costituzionale nel labirinto delle materie “trasversali”: dalla sentenza n. 2 8 2 alla sentenza n. 4 0 7 del 2 0 0 2 . Giurisprud enza Costituzionale: 2 9 5 1 ff. Marzaro, P. 2 0 1 1 . L’amministrazione d el paesaggio, profili critici ricostruttivi d i un sistema complesso. Torino: Giappichelli Marzuoli, C. 2 0 0 8 . Il paesaggio nel nuovo Codice dei beni culturali. Aed on 3 . Mazzarella, V. 2 0 0 8 . La disciplina del paesaggio dopo il d. lg. 6 3 /2 0 0 8 . Giornale d i d iritto amministrativo: 1 2 -2 1 . Merusi, F. 1 9 7 5 . Commento all’art. 9 . In Commentario d ella Costituzione, Principi fond amentali (Art. 1-12), ed. G. Branca. Bologna: Il Mulino Predieri, A. 1969. Significato della norma costituzionale sulla tutela del paesaggio. In Stud i per il ventesimo anniversario d ell’Assemblea costituente. Firenze: Vallecchi. Predieri, A. 1 9 8 1 . Paesaggio. Encicloped ia d el d iritto, XXXI, 5 0 6 ff. Milano: Giuffrè. Priore, R. 2 0 0 7 . La Convenzione europea del Paesaggio: matrici politico-culturali e itinerari applicativi. In Convenzione europea d el Paesaggio e governo d el territorio, ed. G. F. Cartei. Bologna: Il Mulino, 1 7 ff. Sandulli, A. M. 1 9 6 7 . La tutela del paesaggio nella costituzione. Rivista giurid ica d ell’ed ilizia I: 7 0 ff. Sciullo, G. 2 0 0 8 . Il paesaggio fra la Convenzione e il Codice Aed on 3 . Sciullo, G. 2 0 1 2 . I vincoli paesaggistici ex lege: origini e ratio. Aed on 1 -2 . Serritiello, A. 2 0 1 3 . Verso la revisione del Codice dei beni culturali e del paesaggio, Aed on 3 . Settis, S. 2 0 1 0 . Paesaggio Costituzione Cemento, La battaglia per l’ambiente contro il d egrad o civile. Torino: Giappichelli Silvestri, G. 1 9 8 9 . Linguaggio della Costituzione e linguaggio giuridico: un rapporto complesso. Quad erni costituzionali 2 5 1 ff. Starita M. and G. Bottino. 2 0 1 2 . Commento all’art. 1 3 2 . In Cod ice d ei beni culturali e d el paesaggio, ed. M. A. Sandulli, 1 1 4 4 ff. Milano: Giuffrè. Tosco. C. 2 0 0 7 . Il paesaggio come storia, Bologna: Il Mulino. SECTION 3 THE PROTECTION OF THE ENVIRONMENT IN NATIONAL LAW C H A P T E R V I II OUTLINE OF ‘LOCAL’ ENVIRONMENTAL PROTECTION Alberto Clini SUMMARY: 1 . Thematic delimitation. –2 . Emergence of the environmental issue. –3 . Evolution of the environmental legal system in the Italian legal order. –4 . Environmental protection in the centre and in the periphery. –5 . Claims for compensations and capacity to bring legal proceedings in environmental issues. –5 .1 . Constitutional order and prerogatives of the local territorial authority. – 6 . Capacity to bring legal proceedings as an expression of the constitutional status of the territorial authority. 1 . Thematic d elimitation From the mid-nineteenth century on, evolution of the environmental issue (first as a process of cultural emergence, and then as legal regulation) stood out for the progressive expansion of the natural phenomenon of protection, pursued through involvement of all regulation levels (national, international, and European Community). The goal was to create an increasingly meaningful regime of protective measures (regarding precautionary and preventive measures, as well as, of course, restoration and compensation measures). Within the complex evolution of social, economic, and technological phenomena, with the changing of political opinions on the need to strengthen the protecting and promoting measures, the dynamic perspective of the matter, while still global, required a system of general and sectorial rules, as this sector became increasingly updated and modern1 . At this point, the scientific debate can count on wide doctrinal reflection, and therefore it is possible to reference the single systematic “[I]n reason of the fact that the environment is identified in a complex relation system, there is the need to promote it and to make it the object of specific attacks; thus there will be different measures whether the law intends to repress, prevent, or rule the land, the subsoil, the waters, or the atmosphere” (Perfetti, 2 0 0 9 , 4 ). 1 182 ALBERTO CLINI analysis in order to have a general acknowledgement, avoiding redundant repetitions2 . Here it is possible to see an apparent discordance between the globalizing course, just mentioned, of the environmental rules and the associated protection, and a trend that has recently emerged in the Italian legal system, characterized by a limitation to the locus stand i of the territorial authority in bringing an action for liability for environmental damages. Therefore, there is the need to: (1 ) summarize the current regulations, (ii) understand the reorganization of the right of the local autonomies, namely the municipalities, to undertake legal action and (iii) establish the usefulness of an explicit legislative acknowledgement of the ‘environmental’ claim for damages with respect to the prerogatives deriving from the constitutional framework after the amendment of Title V (Constitutional law no. 3 /2 0 0 1 ). 2 . Emergence of the environmental issue By now, inclusion of the right to a safe environment and sustainable development among human rights can be considered as a goal that has been reached (one thinks, for example, of the Aarhus Convention of 1 9 9 8 and integration of protection systems in human and environmental rights) (Monti 2 0 0 4 , 7 1 ). For this reason, human rights, both in this context and in the aforementioned line of reasoning, can represent a backdrop to the problems identified, which at first sight may appear merely technical, while deeper examination reveals precise implications regarding the protection of both human and environmental rights.. Moreover, the jurisprudential evolution of the Strasbourg Court in applying the ECHR –which, as is well known, does not contain an express reference to the environmental value –leans toward ensuring environmental protection as a value of contemporary society, as well as a necessary prerequisite for complete fulfilment of the individual rights sanctioned by the Convention (in force of the adoption of the category of so-called positive obligations, e.g. on deceases caused by environmental pollution)3 . Studies and contributions on the issue are abundant in the literature: for a thorough critical analysis of juridical approaches and a fundamental bibliography see Grassi 2 0 0 7 and Fonderico 2 0 0 8 . 3 In the framework of the protection of human rights “environmental values, initially extraneous to the different regional and universal regulations, gradually became absorbed by them, until they became of primary importance, notwithstanding their explicit formal acknowledgement and even before receiving it” (Saccucci 2 0 1 0 , 4 9 4 ); on the evolution of Court judgements, see Bultrini 2 0 1 1 , 1 2 0 . 2 VIII. Outline of ‘Local’ Environmental Protection 183 According to a first and general description, the environment is necessarily required to grant the natural conditions making possible the life of all living beings. Any kind of alteration or pollution caused in a specific site can generate cascading or long-distance detrimental consequences (like the Chernobyl nuclear accident of 2 4 th April 1 9 8 6 ). Therefore, broader protection must be conceived and prepared with a global vocation. The acknowledgement process within different scientific disciplines and escalation of those measures granting environmental integrity go through an awareness of individuals, in their individual and collective behaviours. These can be seen as a socio-cultural element of awareness of natural phenomena (consider so-called N.i.m.b.y., not in my back yard ). Nevertheless, it is also crystal-clear that full maturing of a civil consciousness is usually translated into spontaneous and isolated forms, if it is not supported by government intervention guaranteeing effective and adequate environmental protection. In summary, numerous Conventions having the merit of recalling the importance of a global discussion on environmental issues have followed one another within the international framework. Starting from the UN Convention on the Environment of 1 9 7 2 , protection in the environmental sector has given rise to the creation of thorough and diffused rules showing, as a whole, the framework of the environmental subject4 . Among the most renowned texts, it is possible to mention the Kyoto protocol of 1 1 th December 1 9 9 7 , which, as is well known, provides for reduction of greenhouse gas emissions by the most industrialized countries in order to curb air pollution. Even before, there was the Rio Declaration on Environment and Development of 3 rd July 1 9 9 2 , which also aimed at extending international cooperation to solve global environmental issues linked, in the first place, to loss of biodiversity and deforestation5 . This complex international framework –even with its praiseworthy intent of focusing global attention on environmental protection issues – has some limitations mitigating the efficiency of any regulatory additions. On one hand, during the past few years there has been a tangible feeling of a certain hypertrophy of Documents and Deeds that expose themselves to excessively repetitive and insufficiently innovative contents. On the other hand, under a strictly juridical-ruling profile, the compulsoriness of the dispositions is still a problem, as there are no obligations to implement them. There are many critical issues highlighted on the actual restoration of environmental damage in the international context: States On the restoration of environmental damage in international law, analysed under the different interpretations of detriment to environmental resources, see Alberton, 2011. 5 The Declaration of Rio consolidates a dynamic vision of the goals to be reached according to a new order of sustainable development (Marchisio, 2 0 0 4 , 2 2 ). 4 184 ALBERTO CLINI rarely admit their responsibilities and, even if they do, the compensations are inadequate if compared to the actual damage (Alberton 2 0 1 1 , 1 6 2 ). At a European Community level, the incipit on the issue is represented by the weak allusion to the environment contained in the Treaty of Rome (Art. 3 6 , on health protection). The European turning point can be registered in 1 9 7 3 with the environmental planning schemes that affirmed for the first time the ‘polluter pays’ principle. The latter was then adopted by the Single European Act of 1 9 8 6 , together with the fundamental duties that the European Community undertook in order to preserve, protect, and improve environmental quality6 . In 1 9 9 3 , the Treaty of Maastricht sanctioned respect for the environment as an autonomous purpose of the community with reference to economic development, and it gave true political dignity to environmental protection goals, thus elevating preventive action to a pivotal principle. The connection of environmental policy and economic aspects gained special importance with respect to the so-called ‘costs to attribute to the person responsible’ as environmental compensation for individual behaviours –having great social importance –vitiated by illicit actions (Green Paper on Remedying Environmental Damage, 1 9 9 3 ). The European Community framework was completed by the White Paper of 9 th February 2 0 0 0 on environmental liability and by the crucial Directive 2004/35/CE on environmental liability with regard to prevention and remedying of environmental damage7 . The Directive regulated with full particulars some aspects of environmental liability, thus ensuring a uniform discipline at a European level. The greatest credit must be given to the approach to compensation for damage, which is no longer assimilated with detrimental alteration of the legal status of a single victim, but is defined as an autonomous category considered as damaging a collective value (the so-called ‘damagingevent’)8 . Community legislation has assured recognition of subjective juridical circumstances intended to safeguard new material and immaterial realities that could improve the quality of human life, thus adding to the traditional economic-patrimonial values the protection of typical solidarity values, among which the environment can be found (Trimarchi 2 0 0 6 , 2 2 6 ). For an extensive analysis of the principles of European environmental law, see Dell’Anno 2 0 0 4 . 7 On Community impacts on compensation see Giampietro 2 0 0 6 . 8 In other words: “the environment per se, even if it cannot be an object of appropriation, can certainly be economically valuated, as it is always possible to establish the loss of value suffered” (Giuffrida 2 0 1 2 , 1 2 8 ). 6 VIII. Outline of ‘Local’ Environmental Protection 185 3 . Evolution of the environmental legal system in the Italian legal ord er The environmental issue arose in the Italian legal system when the first harmful actions indiscriminately exploiting natural resources started to appear, and thus the course affected by the industrial revolution became intertwined with the limits and un-reproducibility of the latter9 . Without any doubt, the slow analysis of the environmental juridical value suffered the consequences of the lack of an express reference to the environment within the original text of the Constitutional Charter. Constitutional comparison reveals a common trend among States to acknowledge the centrality of environmental protection (as in the original Italian Constitution) although an express reference among the principles of the law on the environment is lacking (Grassi 1 9 9 4 , 3 8 9 )1 0 . The missing provision was ‘compensated’ for later by an evolutionary interpretation of different constitutional rules (such as articles 9 , 3 2 , 4 1 , 4 2 , 4 4 and 2 ; the latter is an open clause). The Constitutional Court was crucial in attributing to the environment the constitutional status that it deserves (Judgements 2 1 0 and 6 4 1 of 1 9 8 7 ), until it recognized the autonomy of environmental protection itself (thus released from any other regulations of the sector and directly relatable to articles 9 and 3 2 of the Constitution, and Judgement 3 5 6 of 2 7 th July 1 9 9 4 )1 1 . The contribution of constitutional case law has the merit of having directed environmental definition towards an idea of unitary intangible property, even though characterized by several components (each of which can separately and individually constitute the object of care and protection, though as a whole they are considered as a single unit). The issue of environmental protection can be traced back to the importance of the constitutional value of the asset, although this does not entail its absolute inviolability. Therefore environmental protection is not absolute, but must be balanced with other constitutional values of the same level in order to pursue a harmonization that does not entail the dominance of one by nullifying another. After the amendment of Title V of the Constitution in 2 0 0 1 , the text quotes the word ‘environment’ as the object of the distribution of legislative competence between State and Regions. The criterion adopted assigns it to the exclusive legislative competence of the State (Art. 1 1 7 , ph. 2 , letter s, ‘protection of the environment’ and ‘of the ecosystem’) thus ensuring a connection with the concurrent legislation with reference On the adversarial dynamics of the economical instruments in environmental policies, see Clarich 2 0 0 7 , 2 1 9 . 10 For a synoptic analysis of the environmental notion in the constitutions, see Cordini, 1 0 1 . 11 A thorough analysis of the evolution of Constitutional Court judgements can be found in Cecchetti, 2 0 0 0 . 9 186 ALBERTO CLINI to the valorisation of the cultural and environmental heritage and to territorial management (following ph. 3 )1 2 . This accounts for the importance of the environment as a transversal value, whose protection imposes on the State the principal task of establishing uniform standards on the national territory, coordinated with exercise of the associated regional competence with a view to protection of the interests functionally linked with those strictly environmental1 3 . As far as the legislator’s role is concerned, the first systemic approaches can be traced back to the Sixties: law No. 6 1 5 of 1 3 th July 1 9 9 6 (the socalled ‘antismog law’), followed by law No. 5 of 2 9 th January 1 9 6 6 (quoting for the first time the word ‘environment’), and then Presidential Decree 6 1 6 /1 9 7 7 on local and regional regulations (the environmental issue is included in the town planning context). However, the environment was not a unitary juridical concept until the Seventies, when it was included almost by chance in the various regulations in this sector (such as town planning, healthcare, landscape and cultural-artistic heritage protection) (Capaccioli 1 9 7 0 , 2 9 9 et seq). Juridical studies are affected by this lacuna too, as the word ‘environment’ was listed neither in Juridical Encyclopaedias nor in Repertories (Giannini 1 9 7 3 , 1 5 ; Giannini 1 9 7 6 , 2 0 ). Thus we clearly see the need for unitary juridical protection of the environment. The latter should include, on one hand, any sector referable to it (such as health protection) and, on the other hand, should be extended to the idea of salubrity as protection of individuals and of the social and relational dimension of all citizens. Following the trend toward a less fragmented vision of the environmental value, a more uniform legislative scheme was reached by means of the adoption of law 3 4 9 of 8 th July 1 9 8 6 (instituting the Ministry of the Environment), which sanctions the general principle of environmental liability (in reason of the unitary concept adopted for environmental protection). Art. 1 8 qualifies the environment as an autonomous juridical asset referable to the community, and thus no longer to the single assets of public or private property (the object of protection is the environment, regardless of the breach of other individual rights such as health, property, or other values like landscape or artistic heritage). During the Nineties a serious need emerged to ensure coordination with other disciplines in the sector (which in the meantime adopted different regulations, such as Legislative Decree 2 2 of 5 th February 1 9 9 7 –the Ronchi Decree –on waste; Legislative Decree No. 1 5 2 of 1 1 th May On constitutional reform, with specific reference to the environment, see Ferrara 2 0 0 1 , 1 9 1 et seq.; Pozzo and Renna 2 0 0 4 . 13 For a first analysis of the multilevel system of environmental policies, see Perfetti 2004, 345. 12 VIII. Outline of ‘Local’ Environmental Protection 187 1 9 9 9 on water protection; the Code of Cultural Heritage and Landscaping –Legislative Decree No. 4 2 of 2 2 nd January 2 0 0 4 , which takes in the environmental issue). In this way, the phenomenon of ‘normative pollution’ was to be avoided in the Italian legal system. In the attempt to uniform the legislative framework and on the basis of the input provided by European Directive 2 0 0 4 /3 2 /CE, Legislative Decree No. 1 5 2 of 2 0 0 6 , the so-called Code of the Environment (hereinafter referred to as the Code) came into being (Berti 1 9 7 5 , 2 7 7 )1 4 . The new discipline was not immune to a series of implementing difficulties, especially concerning determination of the compensation for environmental damage that initially was represented by remediation by pecuniary equivalence, and then became –as expressly requested by Directive 2 0 0 4 /3 5 –a restoration measure (primary, complementary, and compensatory)1 5 . 4 . Environmental protection in the centre and in the periphery This brief introduction to the issue analysed shows the clear intent, at the level of territorial governance, to ensure complete and effective environmental protection by means of increasingly adequate and refined measures and juridical methods. A problem on the choice (or inattention?) of the Italian legislator with reference to the meaningfulness of environmental protection emerges in this framework, especially in relation to the claim for losses suffered by a local authority for alteration of its territory and damage to its integrity1 6 . Art. 1 8 of the aforementioned law No. 3 4 9 /1 9 8 6 regulated the general claim for losses in light of the deterioration of the environment and acknowledged wide scope for the filing of the relevant legal proceedings (by the State, territorial entities, or any association or citizen; paragraphs III, IV, V). As is well known, Art. 3 1 8 of the 2 0 0 6 Code partially abrogated the former rule contained in Art. 1 8 , and the issue of liability deriving from environmental damage found a new legislative framework in Part VI (Articles 2 9 9 -3 1 8 )1 7 . Among other comments on the Code, see Sandulli 2 0 1 1 ; Rossi 2 0 1 1 , 2 0 9 et seq. After the objections of the European Commission in 2 0 0 8 and 2 0 1 2 , the Italian Government amended the Code and excluded any kind of monetary compensation for environmental damages (Bonelli 2 0 1 4 , 3 ). 16 For a close examination of the juridical measures aiming at preventing and restoring environmental damage, see Poli, 2 0 0 6 . 17 A reconstruction of the whole regulations on environmental damage can be found in Giulietti 2 0 1 2 ; Cortese, 2 0 0 9 , 1 1 5 7 et seq.. 14 15 188 ALBERTO CLINI This abrogation, nevertheless, saved ph. 5 of Art. 1 8 , law 3 4 9 /1 9 8 6 , which recognizes that environmental protection groups acting on a national level have the right to intervene in lawsuits for environmental damage and seek administrative review to nullify illicit provisions. As far as the active capacity of local administrations is concerned, the Code did not re-introduce a provision like the one expressed by ph. 3 of Art. 1 8 , and only confirmed the State’s right to take legal action for liability. Because there is no longer an express legislative provision referring to compensation for environmental damages, there is now the problem of verifying the capacity of the local territorial authority to file legal proceedings (as hereby analysed and already specified with reference to Municipalities) in correlation with the prerogatives established in the new constitutional framework for interests –environmental ones included –owned by communities1 8 . 5 . Claims for compensations and capacity to bring legal proceed ings in environmental issues Acknowledgement of an autonomous capacity of the territorial authority to bring legal action in order to remedy the harms caused to the environment is of juridical importance thanks to the regulations introduced by the abovementioned law No. 3 4 9 of 1 9 8 9 . As a matter of fact, Art. 1 8 stated in paragraph 3 that “action seeking compensation suffered as a result of environmental damage, even when brought before a criminal Court, [should be] filed by the State as well as by the territorial authorities possessing the object of the damaging event”1 9 , whereas paragraph 1 stated that the author of the damage was forced to compensate “in favour of the State”. Although there is a clear and express legislative provision, interpretation and implementation of the rule presented a ‘hostile’ reading of the diffused acknowledgement of the action for liability that can be brought by the local authority2 0 . In short, For a systematic framework on exercise of the right of the local authorities to take legal action, see Clini and Perfetti, 2 0 1 1 , 4 , 1 4 4 3 et seq.. 19 Among the various comments on Art. 1 8 , law No. 3 4 9 of 1 9 8 6 see Greco 1 9 8 7 , 5 2 9 et seq.; Malinconico 1 9 9 1 , 2 7 5 et seq.; Acquarone 2 0 0 3 . 20 The doubts arose from the connection of the first and third paragraph of Art. 1 8 : paragraph 1 identifies the State as the beneficiary of the compensation borne by the author of the illicit action, whereas paragraph 3 of the same article gives the State, but also other local authorities, the power to act in order to file a claim for environmental damages. Hence, there is an interpretation acknowledging only the State as the holder of the right to seek compensation for environmental damage, while the other territorial authorities have a mere alternative capacity to act. (Criminal Superior Court, III Division, 1 9 th December 1 9 9 0 , No. 6 7 9 , Criminal Supreme Court, 1 9 9 1 , I, 8 7 6 ; Venetian 18 VIII. Outline of ‘Local’ Environmental Protection 189 part of the doctrine and the case law considered the local authority as mere procedural substitutes of the State, in light of a hermeneutic connection of the two paragraphs. According to this approach, the right to compensation for environmental damage was only due to the State in order to protect the national community and the relevant public asset as a whole. According to an opposing stance –certainly more understandable – in force of the provisions of Arts. 2 , 9 , and 3 2 of the Italian Constitution, because the environmental damage only affected one element constituting the local authority, i.e. the territory, it caused a direct infringement of a public right. Therefore, the action seeking compensation for environmental damage could be brought by a territorial authority (both in civil and criminal proceedings) acting as a party with interests and goods that have been harmed or compromised2 1 . This regulatory and jurisprudential framework was confirmed, after 1 9 8 6 , by Art. 4 of law No. 2 6 5 /1 9 9 9 (which was then incorporated in Art. 9 of Legislative Decree 2 6 7 /2 0 0 0 –Consolidation Act on local authorities), according to which “the environmental protection associations listed in Art 1 3 , law No. 3 4 9 /1 9 8 6 , can seek compensation before the ordinary Court for environmental damage when Municipalities and Provincial Councils are entitled to. Any possible compensation shall be paid to the substituted authority and the costs of the proceedings paid or borne by the association”. Therefore, the predominant implementation has interpreted Art. 1 8 , law No. 3 4 8 /1 9 8 6 neither as a ground for a new right, nor as an acknowledgement of a special public asset to be protected; but as a criterion empowering public and private parties to which a compensation for environmental damage is due. With the 2 0 0 6 Code, as already stated, Art. 1 8 was abrogated, except paragraph 5, thus limiting the meaningfulness of environmental protection, Administrative Court, II Division, 2 5 th January 1 9 9 3 , No. 3 0 , Rivista Giuridica dell’Ambiente, 1 9 9 3 , 9 3 1 ). By contrast, there is an interpretation according to which the capacity to seek compensation for damages is primarily of the State, but not exclusively, in light of the very nature of environmental damage, which does not allow legal ownership of this asset to be referred to the State only (Criminal Supreme Court, 2 4 th January 1 9 8 9 , Criminal Supreme Court, 1 9 8 9 , 2 0 5 0 ; Civil Supreme Court, 1 7 th January 1 9 9 1 , No. 4 0 0 , Giustizia Civile, 1 9 9 1 , 1 1 9 0 ). 21 The remark of the Constitutional Court in Judgement No. 6 4 1 , 3 0 th December 1 9 8 7 , has great relevance. According to it, “the capacity of the State and of the other authorities has no basis in the fact that they underwent the costs to restore the damage, nor that they have suffered an economical loss, but in their function to protect the community in their own territory, as well as the interests of the ecological, biological, and sociological balance of the territory that they govern (…). The importance of the relation between the subject and the good is the result of the places and the regulating logic, and not of the self-attribution by the subject”. 190 ALBERTO CLINI in light of the fact that the new system sees only the State as able to seek compensation for any environmental damage2 2 . Furthermore, it is appropriate to recall that Directive 2 0 0 4 /3 5 /CE (by which the Code was inspired) leaves Member States the autonomy to identify the competent authority in the event of environmental damage, as well as to define natural and legal persons entitled to bring legal action for environmental protection before the competent authority (both at a preventive stage, and during restoration –in a specific form of per equivalence). Thus, there is no EC obligation to entitle a single public person or body to carry out the functions relating to environmental damage, nor is any exclusive right established in favour of the State2 3 . On the other hand, the Code made an apparently restrictive choice and reserved the right to file a compensatory claim for environmental damage against the person responsible for the Ministry for the Environment. Therefore, paragraph 2 , Art. 3 1 8 of the Code does not reintroduce full and autonomous legitimisation relating to claims for liability in the event of environmental damage in favour of local autonomies (yet it does not entirely rule it out). The territorial authority can replace state action if the Ministry is found to be tardy or inactive in filing the proceedings (ph. 1 , Art 3 1 0 of the Code) –which is at least strange. Furthermore, the fact must be taken into consideration that local authorities, pursuant to Arts. 3 0 9 and 3 1 0 of the Code, are entitled to bring an action against illicit provisions and have the right to seek “compensation for the damage caused by the late implementation of precautionary, preventive, and damage containment measures”. Other than the latter, they have the right to report damaging events and press the Ministry for the Environment. Furthermore, Art. 3 0 9 gives local authorities the right to lodge complaints and observations to the Ministry The consequences of this abrogation did not cause a great deal of comment in doctrine; see the comments in Maddalena 2 0 1 0 , 3 0 7 et seq. and the more recent lucid analysis in Leonardi 2 0 1 3 , 2 9 2 5 . 23 In fact, the unitariness of the environment does not influence the allocation of competences when managing a territory. The Code could have divided the competences of the public authorities according to the nature, the dimension, and the importance of the detrimental effects. This could have been done by following the model already created for environmental impact assessment or land reclamation tasks, which differentiates ordinary drainage –to be carried out by the Region or, after the issue of a proxy, by local authorities –and drainage of sites of national interest. Thus, pursuant to Art. 2 5 2 of the Code, “this would have made it possible to differentiate the hypothesis of macro-environmental damages of national relevance from micro-environmental ones, for which compensation could have been directly claimed by local authorities in the territories suffering damage deriving from the illicit action –not acting as State subsidiaries (Art. 8 1 Italian Civil Procedure Code) but having their own capacity to seek for compensation for environmental damage” (Leonardi, 2 0 1 3 , 2 9 2 7 ). 22 VIII. Outline of ‘Local’ Environmental Protection 191 for the Environment to be deposited with the Prefecture –Territorial Government Office relating to any event of environmental damage or imminent threat and request State intervention to protect the environment. Therefore, the primary interest of the local authority to prevent and restore the damage must be subject to exercise of the power of the Ministry, which is entitled to decide to adopt precautionary measures, issue an injunction for specific compensation, or promote action for equivalent compensation before the ordinary Court. Even in this hypothesis, the local authority can start an action only in light of inactivity by the Ministry. Such a legislative framework is uselessly complicated, unfit for purpose, and incomplete. On one hand, the Code does not establish a criterion to distribute the different capacities to bring action to the State and/or local authorities. On the other hand, local authorities do not have a full and autonomous legitimisation, which nevertheless is not wholly ruled out. Thus, they are empowered with a role in proceedings which is apparently subsidiary to inactivity of the State. Because of an imprecise and overlapping Code, the need for a wider reflection arose, which could find in the constitutional system a way to ensure a balanced and unified order and logic in the relation between local authority and environment. 5 .1 Constitutional ord er and prerogatives of the local territorial authority As is well known, the democratic system which is the basis of the Italian Constitution drives the political-institutional system towards a pluralist order. The systemic relation between centre and periphery is dynamically described by acknowledging and promoting autonomy and administrative decentralization (Art. 5 , Italian Constitution) in order to eliminate the State monopoly on administration and eschew that “logic and juridical structure of autarky, thus relegating it to the order prior to the new Constitution”2 4 . The self-governance implementation of local authorities does not entail a separation or severing in public regulations and administration (as feared and guarded against by the decision to create a unitary Republic); but rather drives local regulations toward active participation in the creation of the whole set of regulations (Benvenuti, 1 9 9 6 , 6 8 ). The programmatic description given by Art. 5 of the Italian Constitution represents the very origin of the amendments of Title V, The Constitution gives this lesson on autonomy in favour of the relations among regulations, ordering the State legislator to uniform his activities to autonomy criteria and methods (Esposito 1 9 5 4 , 7 9 ). 24 192 ALBERTO CLINI part II of the Italian Constitution, thus entailing profound changes in the general framework of public powers2 5 . The 2 0 0 1 reform aimed at implementing a renewed slant of rules and a readjustment of the role played by local authorities, thus acknowledging their specificity apt to redefine the trend creating an autonomous system, namely regarding the exercise of administrative functions2 6 . The new Art. 1 1 8 of the Italian Constitution provides that the administrative functions should be attributed to the Municipalities; save in the case that in order to ensure unitary applicability, these functions can be assigned to bigger entities –such as Provinces, Metropolitan Areas, Regions and State –on the basis of subsidiarity, differentiation, and suitability principles2 7 . Therefore, this process does not transfer functions from the centre to local authorities, but reorganizes the administrative system in compliance with the principle of vertical subsidiarity, which –as is well known – implies assignment of public responsibilities to the level closest to the citizens each time that it is proportionate to the nature and dimension of the functions2 8 . By the same token, it is clear that higher responsibility for the Municipalities has an unavoidable impact on the position that the local authority has from a legislative point of view. In the new constitutional scenario, the Republic is not “divided into” but “constituted of Municipalities, Provinces, Metropolitan Areas and State”2 9 . The revision of Art. 1 1 4 must be taken as key to interpreting the equal positioning of all institutional entities, as well as a paradigm to define local autonomy in relation with the prerogatives deriving from political, functional, and Constitutional Law No. 3 of 2 0 0 1 drastically renews the relation between State and local authorities. By remodelling the legislative and administrative competences division respectively to Regions and Municipalities (Cammelli, 2 0 0 1 , 3 et seq.), it establishes a higher autonomy of the statutory and regulating sources of local authorities (Falcon, 2001, e et seq.) and it sanctions the principle of vertical and horizontal subsidiarity in the organisation of administrative functions of public power (Groppi -Olivetti, 2 0 0 3 ). 26 Although the change in perspective did not result in the State changing from regional to federal, “the judicial system started to consider local authorities, first, and then regional autonomy as a fundamental part of a polycentric institutional system in which government institutions aggregate themselves bottom to top, as in a federal system” (Pastori, 2 0 0 3 , 2 7 4 ). 27 On the division of administrative functions, see, among others. Sciullo 2 0 0 5 , 3 2 6 ; Falcon 2 0 0 4 , 3 9 1 ; Follieri 2 0 0 3 , 4 4 7 . 28 After all, the idea that the principle of subsidiarity represented the ground for the development of autonomy –even if not expressed in the original text of the Constitution –is supported by the authoritative opinions of D’Atena 1997, 607 and Pastori 1 9 9 5 , 7 8 and confirmed by Bartole 2004, 578 ff.; Cerulli Irelli, 2003; Cammelli, 2002, 453. 29 A judgement on the ‘qualification of the Republic’ is expressed. Therefore, one should currently talk about ‘the role of local authorities in the constitutional system’, rather than about ‘the constitutional system of autonomies’ (Pizzetti, 2 0 0 5 , 1 1 4 ). 25 VIII. Outline of ‘Local’ Environmental Protection 193 financial plans. In other words, it is “a set of institutions positioned on the same juridical level, with a bottom up organization, starting from local institutions, which find their unitary synthesis in the Republic” (Pastori, 1 9 9 5 , 2 7 4 )3 0 . Nevertheless, the aspect of the reform that should be further analysed here is the revision of Art. 1 1 8 of the Italian Constitution, which expressly provides that administrative functions are primarily due to the Municipalities3 1 . The reference to the ‘Municipality’s own functions’ –in connection to ph. II, Art. 3 of the Consolidated Law on Local Authorities, which assigns to the Municipality care of interests and promotion of the development of the relevant community –in Arts. 1 4 4 and 1 1 8 of the Italian Constitution shapes full autonomy from local government. The dynamic system of competences as envisioned in the Constitutional Charter needs a new interpretation of all local authorities leaning toward autonomy. Therefore, the Municipalities enjoy full functions, have a capacity that sets its own limits, and, when there is the need for a unitary approach, steps back by assigning the provisions to a higher (Province, Region, State) and territorially inclusive level, so to speak3 2 . The latter will therefore have full capability to ease development and provide for the interests of the relevant community in implementing the aforementioned functions based on a more efficient distribution of tasks to be undertaken, and not according to a hierarchical need. The attribution of the administrative areas of competences follows a logic based on the function, or more exactly, on the guarantee of a unitary implementation of the function itself. Hence, it does not follow a rationale of subjects and sectors according to a static model like the one used for the distribution of legislative power –thus following the subsidiarity principle together with the criteria of suitability and differentiation3 3 . Therefore, the new constitutional order withdraws the hierarchical and primacy criteria, and adopts a final system of ‘equal institutional pluralism’ (Cammelli 2 0 0 1 , 1 2 7 4 ). 31 The dimension of “a historical and social reality, somehow pre-existing the State, is acknowledged (…) and can be neither violated nor restrained by State Law as it is connatural to the existence of these institutions –like Government bodies of the communities –that grew through the development of the historical tradition” is detected in the local autonomy of the Municipalities (Cerulli Irelli, 2 0 0 5 , 1 8 9 ). 32 The system of allocation of functions is inspired by the attempt to “combine proximity and efficiency with a view to the complex functionality of their implementation, and, therefore, the authority must be connected to the function and not vice versa” (Pastori 2 0 0 2 , 4 8 0 ). 33 Together with the dynamic system allocating the functions according to the criterion of interest dimensioning –and no longer on the former static model –there is the need to integrate the allocation with a ‘functionalist’ evaluation connected to adequacy and good performance judgements (Pajno 2 0 0 6 , 3 8 3 ). 30 194 ALBERTO CLINI 6 . Capacity to bring legal proceed ings as an expression of the constitutional status of the territorial authority The mixed content of the environment in relation to public and private interests is a clear logical premise to the acknowledgement of a plurality of entities having the power to protect individuals and communities. The defining characteristics that have been briefly described highlight the fact that legitimisation of the local authority is compatible with any opinion on the environment. The creation of the environment as an intangible asset recalls a plurality of private and public interests, but it also entails a linked range of protection. If it is seen as a public good, it is possible to admit a kind of protection that connects the good to its holder and, therefore, to the loss (of revenue) and its justifiability. Nevertheless, if it is seen as a collective good, the possibility of juridical protection is enlarged, thus taking it away from the necessary connection with a subjective position. The hypothesis according to which it is a fundamental constitutional value summarizes the need to enlarge protection that removes the environment from individual appropriation and connects it to the obligations of the public sectors to ensure protection and guarantee rights (transforming it into a moment of unification of duties of public authorities). The opinion that considers it to be a personal right (just like the one considering it an extension of the right to health) has the merit of rooting the environment in constitutionally protected areas, thus explaining its specific protection and the rise of the relevant liabilities. According to what has been said hereto, it appears clear that proceedings seeking compensation for environmental damage –as outlined by Legislative Decree No. 1 5 2 of 2 0 0 6 –lead to two main critiques. One derives from the centralization of the prevision granting the capacity to a Ministry to claim for liability, without specific needs to safeguard the unity of the system3 4 . The other can be found in a kind of weakening of the protection system, which lacks any clear and real reasons justifying a limitation of a territorial authority in its role as a protector of its territory’s interests (against the procedural autonomy of environmental groups)3 5 . The issue of the active capacity to act is not limited in the proceedings, but is extended on a substantial level. This issue was already thwarted in the past, and it alludes to a State having a sort of environmental property (Lorenzotti 1 9 9 1 , 2 7 5 ). 35 It is clear that this is the most clashing legislative datum in environmental protection, most of all if attention is paid to the justifications deriving from case law that ground the claims of those associations that, by their nature, cannot substitute local administrative authorities. It is affirmed that keeping paragraph 5 of the abovementioned Art. 1 8 allows the association for environmental protection to have an active capacity to act before the ordinary and administrative judge in order to protect the final goal (environmental 34 VIII. Outline of ‘Local’ Environmental Protection 195 The system contained in Part VI of the Code must be connected with a coherent and logical interpretation of the Constitution. The Code, rather than contemplating a dynamic structure of competences, preferred to introduce a static system concentrating all competences, which ultimately helps censures deriving from forced constitutional conformity, but does not seem to help environmental protection3 6 . If, on one hand, the disposition on the environment must respect the allocation criteria provided for in Art. 1 1 7 , ph. 1 , letter s) of the Constitution, at the same time it must protect the principle of subsidiarity (Art. 1 1 8 , ph. 1 of the Italian Constitution). This very principle is also reiterated by Enabling Law No. 3 0 8 /2 0 0 5 , by Art. 3 quinques of the Code, and Art. 2 9 9 , ph. 3 of the Code, which, when referring to dispositions on environmental damage, provides that “ministerial action is brought in the respect of the current Community Legislation on damage prevention and restoration, as well as on competences of Regions, and the autonomous regions of Trent and Bolzano, thus implementing the constitutional principles of subsidiarity and loyal collaboration”3 7 . By contrast, local authorities and regions have a mere ancillary function on environmental damage matters with respect to the Ministry of Environment and Territorial Protection, as already stated3 8 . A rebalance of the centre-periphery order can be reached if environmental protection (of exclusive State competence) is seen as adoption of uniform standards supported by increasingly strict measures –in order to contain specific environmental circumstances –for which only the central government is rightfully empowered. This is a coherent interpretation of the precautionary and prevention principles in regulating the behaviour to establish in order to protect the environment. protection) that is usually under the governance of the State administration. In this way, the horizontal subsidiarity principle, adopted by Art. 1 1 8 , last paragraph, of the Italian Constitution, is implemented. “These associations must acknowledge the fact that they have the capacity to bring an action before the Court not only to protect environmental interests stricto sensu, but also those interests comprising the preservation and enhancement of the environment, urban, rural, natural landscapes, historic buildings, old town centres. The latter should all be considered as goods and values apt to characterize in an original, peculiar, and unique way a specific territory” (ex multis, Regional Administrative Court, Lombardy, Milan, II Division 2 2 nd October 2 0 1 3 , No. 2 3 3 6 ; Supreme Administrative Court, IV Division, 1 4 th April 2 0 1 1 No. 2 3 2 9 ). 36 The contrast with the variety of the subsidiarity principle appears to be clear if local authorities and regions only have a function to serve –as shown –or merely collaborate with of the Ministry (Lugaresi, 2 0 1 2 , 5 9 ). 37 The process centralizing protection in order to nationalise it is allegedly in contrast with the principle of subsidiarity (Cortese, 2 0 0 9 , 1 1 9 6 ). 38 The impact that the State can have on macro-environmental damage is of national importance, whereas in circumstances of micro-environmental damage an action brought by a local authority reflects more the meaning of the regulated protection. 196 ALBERTO CLINI Compensation is calibrated on the final and completing aspect of the importance of environmental protection, for which the exclusion of territorial entities from damage claims is the expression of a weakening of the same effectiveness. This approach does not clash with the Constitution, but offers a correct interpretation “not only because the terms used by the current Constitution regarding the object of protection are defined by a multiplicity of expressions (letter s of Art. 1 1 7 , ph. 2 of the Constitution indicates the ‘environmental protection’ alongside ‘protection of the ecosystem’ and ‘protection of the cultural heritage’; ph. 3 of Art. 1 1 7 indicates as a matter under concurrent competence ‘enhancement of the cultural and environmental heritage’; Art. 9 still has the provision on ‘landscape protection’ and of ‘the National historical and artistic heritage’ connected with the dynamic principle of the ‘promotion’ of ‘culture’ and ‘scientific research’ as established by ph. 1 ), but also because the constitutional text itself acknowledges the difficulty of isolating the issue ascribable to the State from that connected with environmental interests. In fact, for the issues listed in letter s, Art. 1 1 7 , ph. 2 “it is possible to activate further measures and specific conditions of autonomy” to be conferred on Regions under the same Law –after having reached an agreement (see Art. 1 1 4 , ph. 3 ) (Grassi 2 0 0 7 , 1 1 2 7 ). Thus, excluding the single local authority from protection of its own territory –under a compensatory profile –is inconsistent with the constitutional order, as well as inadequate with respect to all different aspects of the subsidiarity principle in light of the goals requesting flexible intervention to guarantee the effectiveness of the environmental protection. These considerations are partially taken into account by jurisprudence, which nevertheless has not yet reached a unitary position and relies on allocation criteria separated from the prerogatives of the territorial authority in an interpretation favourable to acknowledgement of a procedural legitimisation. Before the adoption of the Code, the prevailing tendency of jurisprudence on environmental damage issues empowered the territorial authorities with an autonomous right to enter judgements3 9 . In other words, the capacity of the territorial authority to bring an action before the ordinary Judge was not questioned, whether or not the limits of the claimed amounts in relation to the nature of the environmental damage was correctly made. Therefore, “the Region and, more in general, local authorities are entitled to file a civil claim pursuant to Art. 1 8 , law No. 3 4 9 of 8 th July 1 9 8 6 , in light of the fact that the environmental damage deriving from an illicit action has a direct impact on the environment –as qualified territorial layout –and because it is a constitutive element of those authorities is the object of their personal right. Authorities and associations do not have the capacity to file a civil claim –even if they have obtained government recognition pursuant to Art. 1 3 , law No. 3 4 9 –when the pursued interest is that of the general environment or one 39 VIII. Outline of ‘Local’ Environmental Protection 197 Thanks to the new legislative order provided by the Code, jurisprudence has taken environmental damage back to the impairment of a general interest and only the State is entitled to file a claim for damages. Therefore, it aligned itself with the centralisation of competences on the Ministry of Environment and Territorial Protection, which can directly or indirectly – through the Directorate General for the environmental damage –exercise the State functions of protection, prevention, and restoration of environmental damage4 0 . The exclusivity granted by the Law to the State has not prevented subsequent judgements (which are now the majority tendency) from entitling territorial entities with the power –even if limited –to intervene. By confirming that the State alone is entitled to compensation for environmental damage of public nature –considered as detrimental to the public and to the general environmental interest –it is consequently declared that: “pursuant to Art. 2 0 4 3 of the Italian Civil Code, other subjects, single or groups (including territorial public entities and regions) have the right to take action in order to be awarded compensation for additional and complete pecuniary damage, if they can prove that their pecuniary rights (other than the public and general interest of environmental protection) have suffered in consequence of the same conduct damaging the environment” (Criminal Supreme Court, III Division, 1 3 th April 2 0 1 1 , No. 2 1 3 1 1 ). Even though this argument has the merit of increasing the number of public authorities controlling environmental issues, it is clearly exposed to a problematic issue. The acknowledgement of an autonomous right to claim for compensation for territorial authorities is connected to an incomplete criterion, in light of the fact that it focuses authorization to characterized by a mere ideological connection to the public interest. This is because it is a diffused interest, and as such is not part of the partnership and, therefore, not always refundable (Criminal Supreme Court, III Division, 1 5 th June 1 9 9 3 ). 40 In one of the first judgements issued after the introduction of the Code, the Criminal Judge –although he recognized the existence of issues of coordination of the regulations both among themselves and with other dispositions of the same legislative text –affirmed that only the Ministry of the Environment “has two alternatives to restore environmental damage. It can either file a judicial proceeding or proceed to administrative recovery by means of the procedure according to Arts. 3 1 2 et seq. of Legislative Decree No. 1 5 2 of 2 0 0 6 , partially anticipated by Finance Law No. 2 6 6 of 2 0 0 5 , paragraphs 4 3 9 4 4 2 on the issuing of a direct order. The latter would then order the person or body responsible for the illicit action to restore the environment within the fixed time limits by way of specific compensation. Furthermore, in the event of non-observance, if the restoration is fully or partially impossible to achieve, or if it is too costly pursuant to Art. 2 0 5 8 Italian Civil Code, by means of a new injunction the payment of a sum equal to the ascertained and residual damage would have to be paid within 6 0 days of notification, as compensation by financial equivalent (Criminal Supreme Court, III Division, 0 6 th March 2 0 0 7 , No. 1 6 5 7 5 ). 198 ALBERTO CLINI act on the object of the claim (more specifically on the nature of the damage to be compensated) and yet it neglects the legal status of the actor (and, therefore, the characteristics defining protection powers and relevant instruments). As a consequence, the reason why a territorial authority is entitled to bring action is not clarified –which is a clear and preliminary requirement for any claim for damage, regardless of the nature of the injustice of the damage suffered). Furthermore, it is not hard to imagine a weakness of the criterion establishing the authorization to act that is connected to an (unclear) distinction between environmental damage –of State purview –and other damages for which a local administration can claim for compensation. A unifying interpretation strengthens the final framework of the autonomy of local authorities, according to a constitutionally oriented recognition to the abovementioned extent. This would overcome the fragmented juridical implementation both with regard to the rigid and controversial correlation between competence and legitimisation, as well as to making the capacity for procedural initiative contingent upon the variable definition of environment. The need to take action in reason of “direct, tangible, and current damage to one’s interests” qualifies the action according to the criteria provided by Art. 2 4 of the Italian Constitution. (Therefore, there will be a claim when the action is brought ‘for’ –thus the procedural interest is integrated in the action –the protection of ‘one’s’ interests. In this way, the capacity to take action coincides with protection of the possessed interests only, and not of third party ones, and thus the validation is part of the fundamental right to take action)4 1 . If this is not the case, the juridical debate on the capacity of local authorities to take action is fated to be an unproductive one between acknowledgement of the capacity to assert diffused interests rooted in the territory –independently from the entitlement to specific competences on the matter –and, on the contrary, considering the condition to act real only when the authority is entitled with specific competences on the matter pertaining to the challenged issue. This would mean that the competence exists only if the interest does, in consequence of the damage considered detrimental to the authority or its citizens. Therefore, acknowledgement in favour of the territorial authority must be connected to its constitutional competences and its legal status, which is not appraised under many aspects in the judicial application. The reference is not only to the position assigned to the local territorial authority by its regulations, but to the prerogatives deriving from the new constitutional order, which is definitively decentralized and autonomist. 41 This issue is addressed and discussed in Perfetti, 2 0 0 4 . VIII. Outline of ‘Local’ Environmental Protection 199 Bibliography Alberton M. 2 0 1 1 . La qualificazione e la riparazione d el d anno ambientale nel d iritto internazionale e d ell’unione europea. Milano: Giuffré. Acquarone G. 2 0 0 3 . I principi d elle politiche pubbliche per la tutela d ell’ambiente. Torino, Giappichelli. Bartole S., 2 0 0 4 . Collaborazione e principio di sussidiarietà nel nuovo ordine regionale. Le Regioni: 5 7 8 . Benvenuti F. 1 9 9 6 . L’ord inamento repubblicano. 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Milano: Giuffré. Cerulli Irelli V. 2 0 0 3 . Sussidiarietà (dir. amm.). Encicloped ia Giurid ica, aggiornamento vol. XXX, Roma. Cerulli Irelli V. 2 0 0 5 . Il nuovo assetto dell’amministrazione. In L’attuazione d el titolo V d ella Costituzione, Atti del Convegno di Studi di Scienza dell’Amministrazione. Milano: Giuffré. Clarich M. 2007. La tutela dell’ambiente attraverso il mercato. Diritto pubblico: 219. Clini A. and L.R. Perfetti. 2 0 1 1 . Class action, interessi diffusi, legittimazione a ricorrere degli enti territoriali nella prospettiva dello statuto costituzionale del cittadino e delle autonomie locali. Diritto processuale amministrativo: 1 4 4 3 . Cordini G. 2 0 0 4 . Il diritto ambientale da Rio de Janeiro a Johannesburg. In Profili d i d iritto ambientale d a Rio d e Janeiro a Johannesburg, ed. E. Rozo Acuña, 1 0 1 . Torino: Giappichelli. Cortese F. 2 0 0 9 . Commento agli artt. 2 9 9 -3 1 1 . In Nuovo cod ice d ell’ambiente, ed. Lugaresi, N. and S. Bertazzo, 1 1 5 7 . Rimini: Maggioli. D’Atena A. 1 9 9 7 . Il principio di sussidiarietà nella Costituzione italiana. Rivista Italiana d i Diritto pubblico comunitario: 6 0 7 . De Cesaris, A.L. and S. Nespor, (eds.). 2 0 0 9 -2 0 1 1 . Cod ice d ell’ambiente. Milano: Giuffré. Dell’Anno P. 2 0 0 4 . Principi d el d iritto ambientale europeo e nazionale. Milano: Giuffré. Esposito C. 1 9 5 4 . Autonomie locali e decentramento amministrativo nell’art. 5 della Costituzione, in La Costituzione italiana. Saggi, 7 9 . Padova: Cedam. Falcon G. 2 0 0 1 . Il nuovo titolo V della parte seconda della Costituzione. Le Regioni: 3 . Falcon G. 2 0 0 4 L’autonomia amministrativa e regolamentare. Le Regioni: 3 9 1 . Ferrara A. 2 0 0 1 . La “ materia ambiente” nel testo di riforma del Titolo V. Problemi d el fed eralismo: 1 9 1 . 200 ALBERTO CLINI Follieri E. 2 0 0 3 . Le funzioni amministrative nel nuovo titolo V della parte seconda della Costituzione. Le Regioni: 4 4 7 . Fonderico F. 2 0 0 8 . Ambiente, tutela dell’ambiente (diritto amministrativo). Encicloped ia giurid ica, Aggiornamento vol. XVI, Roma. Giampietro F. (ed.). 2 0 0 6 . La responsabilità per d anno ambientale. L’attuazione d ella d irettiva 2004/35/CE. Milano: Giuffré. Giannini M. S. 1 9 7 3 . Ambiente: saggio sui diversi suoi aspetti giuridici. Rivista trimestrale d i d iritto pubblico: 1 5 . Giannini M. S. 1 9 7 6 . I beni culturali. Rivista trimestrale d i d iritto pubblico: 2 0 . Giuffrida R. (ed.). 2 0 1 2 . Diritto europeo d ell’ambiente. Torino: Giappichelli. Giulietti W. 2 0 1 2 . Danno ambientale e azione amministrativa. Napoli: Editoriale Scientifica. Grassi S. 1 9 9 4 . Costituzioni e tutela dell’ambiente. In Costituzioni, razionalità, ambiente, ed. S. Scamuzzi. Torino: Giappichelli. Grassi. S. 2 0 0 2 . La tutela dell’ambiente dopo il nuovo Titolo V. Diritto e gestione d ell’ambiente: 3 6 1 . Grassi S. 2 0 0 7 . Tutela dell’ambiente (diritto amministrativo). In Encicloped ia d el d iritto, Ann. I.: 1 1 1 4 . Milano: Giuffré. Greco G., 1 9 8 7 . Danno ambientale e tutela giurisdizionale. Rivista giurid ica d ell’ambiente: 5 2 9 ff. Groppi T.and M. Olivetti (eds.). La Repubblica d elle autonomie. Regioni ed enti locali nel nuovo Titolo V. Torino: Giappichelli. Leonardi R. 2 0 1 3 . L’esclusione della legittimazione ad agire degli enti locali nell’azione risarcitoria in tema di danno ambientale: la negazione del “federalismo ambientale”. Foro amministrativo TAR: 2 9 2 7 . Lorenzotti F. 1 9 9 1 . Lo strano caso della “proprietà” ambientale e della responsabilità per il suo danneggiamento. In Il d anno ambientale con riferimento alla responsabilità civile, ed. P. Perlingieri, 2 7 5 . Napoli: Esi. Lugaresi N. 2 0 1 2 . Diritto d ell’ambiente. Padova: Cedam. Malinconico C. 1 9 9 1 . I beni ambientali. In Trattato d i d iritto amministrativo, ed G. Santaniello, 2 7 5 . Padova: Cedam. Maddalena P. 2 0 1 0 . La tutela dell’ambiente nella giurisprudenza costituzionale. Giornale d i d iritto amministrativo: 3 0 7 Marchisio S. 2 0 0 4 . Il diritto internazionale ambientale da Rio a Jahannesburg. In Profili d i d iritto ambientale d a Rio d e Janeiro a Johannesburg, ed. E. Rozo Acuña, 2 2 . Torino: Giappichelli. Merusi F. 1 9 7 5 . Art. 9 . In Commentario d ella costituzione, principi fond amentali (art. 1-12), ed. G. Branca, 4 3 4 . Bologna-Roma: Zanichelli. Monti L. 2 0 0 4 . I diritti ambientali nella Convenzione di Aarhus. In Profili d i d iritto ambientale d a Rio d e Janeiro a Johannesburg, ed. E. Rozo Acuña, 7 1 . Torino: Giappichelli. Pajno S. 2 0 0 6 . Il potere sostitutivo nei confronti degli enti territoriali. In Il d iritto amministrativo d opo le riforme costituzionali. Parte generale, ed. Corso, G. and V. Lopilato, 3 8 3 . Milano: Giuffré. Pastori G. 2 0 0 2 . La funzione amministrativa nell’odierno quadro costituzionale. Diritto d ell’Economia, 3 -4 : 4 8 0 . Pastori G.. 2 0 0 3 . L’amministrazione nel nuovo titolo V Cost.: continuità e discontinuità. In L’Europa tra fed eralismo e regionalismo. Atti del Convegno. Università dell’Insubria, 2 2 -2 3 novembre 2 0 0 2 , ed. M. P. Viviani Schlein, E. Bulzi and L. Panzeri, 2 7 4 . Milano:Giuffré. Pastori G. 1 9 9 5 . Unità nazionale, autonomie e federalismo. Le Regioni: 7 8 . VIII. Outline of ‘Local’ Environmental Protection 201 Perfetti L.R. 2 0 0 4 . Diritto d i azione ed interesse ad agire nel processo amministrativo. Padova: Cedam. Perfetti L. R., Il governo dell’ambiente in Italia tra centro e periferia. In Profili d i d iritto ambientale d a Rio d e Janeiro a Johannesburg, ed. E. Rozo Acuña, 3 4 5 . Torino: Giappichelli. Perfetti L.R. 2 0 0 9 . Premesse alle nozioni giuridiche di ambiente e paesaggio. Cose, beni, diritti e simboli. Rivista giurid ica d ell’ambiente: 4 . Pizzetti F. 2 0 0 5 . Il sistema costituzionale delle autonomie locali (tra problemi ricostruttivi e problemi attuali). In L’attuazione d el titolo V d ella Costituzione, Atti del L Convegno di Studi di Scienza dell’Amministrazione: 1 1 4 . Milano: Giuffré. Poli S. 2 0 0 6 . La responsabilità per d anni d a inquinamento transfrontaliero nel d iritto comunitario e internazionale. Milano: Giuffré. Pozzo B. and M. Renna (eds.). 2 0 0 4 . L’ambiente nel nuovo titolo V d ella Costituzione. Milano: Giuffré. Rossi G. (ed.). 2 0 1 1 . Diritto d ell’ambiente. Torino: Giappichelli. Saccucci A. 2 0 1 0 . La protezione dell’ambiente nella giurisprudenza della Corte europea dei diritti umani. In La tutela d ei d iritti umani in Europa, ed. A. Caligiuri, G. Cataldi and N. Napoletano, 4 9 4 . Padova: Cedam. Sandulli M.A. (ed.) 2 0 1 1 . Cod ice d ell’azione amministrativa. Milano: Giuffré. Sciullo G. 2 0 0 5 . Federalismo amministrativo. In Digesto d elle Discipline Pubblicistiche, Aggiornamento II: 3 2 6 . Torino. Trimarchi M. 2 0 0 6 . L’ambiente, profili generali. In Il d iritto privato d ell’Unione europea, ed. A. Tizzano, 2 2 6 . Torino: Giappichelli. C H A P T E R IX THE RECENT ITALIAN REFORM ON ‘ECO-CRIMES’ Licia Siracusa SUMMARY: 1 . Introduction –2 . The main changes in the reform –3 . The environmental pollution crime –3 .1 The special unlawfulness clause –3 .2 The punished harm –4 . The typical conduct of the environmental disaster crime – 4 .1 The event in the disaster crime –5 . Deaths or injuries caused by pollution events –6 . The omitted remediation crime (art. 4 5 2 terd ieces c.p.) and the order to restore the condition of the location (art. 4 5 2 d uod ecies c.p.) –7 . The crime of trafficking and abandonment of highly radioactive material (art. 4 5 2 sexies c.p.) –8 . Active repentance –9 . The extinction of the crime for the course of time (prescrizione d el reato) –1 0 . A concise “evaluation” in a future perspective. 1 . Introd uction The reform in the field of eco-crimes, recently passed by the Italian Parliament with the approval of Law 6 8 of May 2 2 , 2 0 1 5 , certainly represents a ‘historic event’, long awaited by those ‘working in the sector’ who constantly recalled its urgency, despite the variety of proposed solutions (Siracusa 2 0 1 5 ). As often happens in criminal law, the leap forward in the direction of a radical innovation of the regulation was triggered by the echo connected to certain sensational court cases, which drew the attention of public opinion and of the lawmaker on the need to ensure adequate coverage by criminal law for the most serious forms of aggression of the environment, not easily punishable under the applicable regulation. The final push then originated from judicial practice. Approval of the text in fact arrived about a month and a half after the depositing of the grounds upon which there was based the legality judgment on the ‘caso Eternit’ (i.e., the Asbestos case1 ), although it was left to lie in Parliament for about a year (in this sense, also, Amendola 2 0 1 5 a, 9 6 9 , 9 7 0 ). Cass. pen., sez. I, 1 9 novembre 2 0 1 4 (dep. 2 3 febbraio 2 0 1 5 ), n. 7 9 4 1 . For the literature on the Asbestos cases, see Guariniello 1 9 9 9 , 2 3 7 ; 2 0 0 0 , 2 7 8 ; Blaiotta 2 0 0 3 , 3 3 9 1 ; Di Amato 2 0 0 3 ; Insolera and Montuschi 2 0 0 6 ; Siracusa, 2 0 0 9 , 9 6 9 ; 2 0 1 1 , 7 5 7 ; Ascione 2 0 1 0 , 9 0 0 ff; Surace 2 0 1 0 , 2 1 1 ; Masera 2 0 1 0 ; 2 0 1 1 ; Zirulia, 2 0 1 1 ; Zirulia 2 0 1 2 a, 2 7 7 ; Zirulia 2 0 1 2 b; 2 0 1 3 ; Palazzo, 2 0 1 1 , 1 8 7 ff.; Orsina 2 0 1 5 , 3 3 ff. 1 204 LICIA SIRACUSA Once the difficult path of the reform ended, the debate relevant to the basis, the limits and the techniques of this area of the criminal justice system has again become current, and as a matter of fact, it gets the motivations offered by the testing ground of the law on ‘eco-crimes’. Amongst the innovations that stand out there are the following: a) inclusion in the Criminal Code of a whole title dedicated to environmental crimes; b) adjustment of our legal system to the content of Directive 2 0 0 8 /9 9 /EC on protection of the environment through criminal law2 . As is well known, Italian implementation of these European requirements largely disappointed expectations, because of both failure to introduce new result crimes, which would have required proper adjustment to the standards of incrimination as outlined in the European text, and the absence of a comprehensive review of the system of criminal protection of the environment. Thus the expectations relevant to the positive impact of the directive which were frustrated in the aftermath of its implementation found instead an answer with the approval of Law no. 6 8 of 2 0 1 5 , both in terms of going deeper into the level of the punished crimes and in terms of making punishments harsher, within the framework of a higher harm of the new criminal offences. 2 . The main changes in the reform As mentioned, the reform of the law on eco-crimes undoubtedly determines a very radical change in environmental criminal law, as it acts on several fronts: 1 ) it introduces a single title on environmental crimes in the Criminal Code3 ; 2 ) it provides the "result crimes" and the "cond uct crimes"; 3 ) it extends the application area of remedial and restoration measures; 4 ) it amends the conditions of criminal liability of environmental fines. The first significant change is certainly represented by the inclusion of environmental crimes within the Criminal Code. This is an operation with a strong symbolic value, like any reform initiative that directly affects Directive 2 0 0 8 /9 9 /EC of the European Parliament and of the Council of 1 9 November 2 0 0 8 on protection of the environment through criminal law, in Official Journal of the European Union, L3 2 8 /2 8 . 3 Titolo VI – bis, Libro II, Codice Penale “Dei d elitti contro l’ambiente”. 2 IX. The recent Italian Reform of “Eco-crimes” 205 the catalogue of goods protected by the provisions of the Code, to which certain clear advantages may be connected (Amendola 2 0 1 5 a, 9 6 5 ). It is a choice of value that supports the idea of the absolute centrality finally assumed by the environment, within the framework of the strong core values that are the subject matter of criminal law protection and it has inevitable repercussions at the level of general deterrence, both in terms of aggravation of the level of penalties provided for in proportion to the greater ‘weight’ acquired by the protected good, and in terms of affirmation and promotion of a new ‘cultural’ model with a green imprint4 . The signs of this change of perspective –which indeed is not entirely acceptable in all its facets –on the side of repressive strictness and of the emphasis placed on eco-crimes are numerous and obvious: 1 ) the high levels of punishment prescribed by law which place the new incriminations in the category of the most serious offenses; 2 ) the choice of a ‘comprehensive’ punitive model which progressively incriminates each level of aggravation of the harm to the environment; 3 ) the establishment of a common subjective aggravating circumstance that entails an increase or reduction of the sentence by more than onethird (i.e., ad effetto speciale) that typifies a new ‘specific environmental intent’; 4 ) the increased penalties provided for cases of criminal mafia-type conspiracy aimed at committing environmental crimes or at managing or controlling economic activities, concessions, authorizations, contracts and public services in the environmental field (article 4 5 2 octies c.p., paragraph 2 ). 5 ) the provision of a barrier-crime, i.e. the crime of impediment of inspection (article 4 5 2 septies c.p.) in which, as is obvious, the punished harm only indirectly refers to the environment and instead it directly affects its governing administrative functions. The reform marks a forceful change of pace in the fight against environmental crimes. But this turnaround generated some questionable punitive excess in certain respects, taking into account, for example, the subjective aggravating circumstance referred to in article 4 5 2 novies c.p, or the concealed incrimination of a ‘negligent attempt’ at an environmental offense, referred to in 4 5 2 quinquies c.p, paragraph 2 , or even the excessive extension of the prescription period (Among the many comments on the Reform, Amendola 2 0 1 5 , 9 6 3 ff.; Bernasconi 2 0 1 5 ,1 4 0 3 ff., Catenacci 2 0 1 5 ,1 0 6 9 ff.; Manna (ed.) 2 0 1 6 ; Masera 2 0 1 5 , 1 ff.; Molino 2 0 1 5 ; Ramacci 2 0 1 5 , Telesca 2 0 1 5 ). 4 On general deterrence, see Pagliaro 2 0 0 9 a, 8 9 1 ff. and 2 0 0 9 b, 1 0 6 7 . 206 LICIA SIRACUSA 3 . The environmental pollution offence The new environmental crimes complete the current system of criminal law protection of the environment, since they set incriminations punishing more advanced forms of harm to the environment alongside existing abstract danger offences. Therefore, on the one hand, an obvious gap in our legal system is filled (Bajno 1 9 8 7 , 1 1 5 : Bertolini 1 9 8 8 , 3 -6 ; Vergine 1 9 9 5 , 7 5 6 ; Laganà 1 9 9 9 , 2 2 3 ; Patrono 1 9 8 0 , 5 0 ff.; Patrono 1 9 8 9 , 1 0 1 9 ; Patrono 2 0 0 0 , 6 6 9 ff.; Patrono 2 0 0 8 , 7 0 4 -7 0 5 . 7 1 9 -7 2 0 ; Plantamura 2 0 0 7 , 1 9 3 ff.; Siracusa 2 0 0 7 , 1 6 3 ff.; Bernasconi 2 0 0 8 , 1 1 9 ff.; Lo Monte 2 0 0 8 , 5 6 ). On the other hand, as anticipated, the legal system is aligned with the standards of protection set by Directive 2 0 0 8 /9 9 /EC, which characterize the majority of European legal systems. More specifically, the text of the reform provides for an ‘Environmental Pollution’ offence (art. 4 5 2 bis c.p.) which punishes conducts concretely harming the environment, provided they are enacted in breach of sector-specific extra-penal regulations. Therefore, this is an result crime characterized by two structural requirements of unlawfulness and of tangible harmfulness of the conduct. 3 .1 The special unlawfulness clause The requirement of the unlawfulness of the conduct is succinctly expressed by an illegality clause. It is important that the behaviours which cause the offence are enacted illegally. The use of this clause represents a change to the text approved by the Chamber [of Deputies], which did, however, refer to the “violation of legal and regulatory or ad ministrative provisions, specifically intend ed to protect the environment, whose non-respect constitutes itself an ad ministrative or criminal offence 5 ”. The new wording also makes it possible to extend incrimination to conducts whose illegal nature consists not only of non-compliance with legislative rules or regulations for protection of the environment, but also with provisions or measures aimed at the protection of interests other than the environmental interest. This system is perfectly consistent with the characteristics of the administrative management of the environment, which is often closely linked with the management and protection of other types of interests. The wording used, in fact, also covers behaviours in breach of requirements imposed for the protection of different goods (e.g., landscape, or health etc.), but only when they cause harm to the 5 Against this formulation, see Vergine, 2 0 1 4 , 4 5 7 ff. IX. The recent Italian Reform of “Eco-crimes” 207 environment (in this sense, also Ruga Riva 2 0 1 5 b, 5 -1 0 ; Ruga Riva 2 0 1 5 c, 2 1 0 9 ; Caterini 2 0 1 7 , 3 3 9 ff.; contra, Amendola 2 0 1 5 a; 2 0 1 5 b; 2 0 1 6 6 ). The solution seems reasonable, because the enlargement of the scope of the provision deriving from it is effectively counterbalanced by the provision of a harmful event, which confines the penal relevance exclusively to illegal behaviours causing damage to the environment. With reference, instead, to the way of understanding its meaning within the scheme of the typical event, there is no doubt that such a clause must be included amongst the genuine special unlawfulness clauses, which –as is well known –are needed to give the action a further profile of unlawfulness, of an extra-penal nature, further to the criminal unlawfulness which inherently characterizes it (Pulitanò 1 9 6 5 , 6 5 ff.) Therefore, this is not a legal element which has the function of denoting a condition of conduct, as it would be if it simply referred to the absence of a qualifying measure. But it represents a verbal wording needed to colour the crime with a further qualification of unlawfulness consisting precisely in the breach of the sector-specific extra-penal regulation7 . This interpretation is firstly confirmed by the fact that the adverb ‘illegally’ replaced another broader wording, which indeed expressly referred to profiles of special unlawfulness of the punished action. Therefore, reasons of logical consistency suggest that this only represented the transition from one term to a new one, of a more concise type, the purpose not having changed in the structure of the typical action. Secondly, if the reform aims, as we understand, to complete the system of protection of the environment through criminal law with the incrimination of all possible ranges of harm to the good, in the context of criminal progression from abstract danger to damage or real danger events, obviously the requirement in question is designed to narrow the field of incriminations to behaviours causing concrete damage to the environment that constitute the natural development of the danger, created by non-compliance with the precautions required in The Jurisprudence agrees with this orientation, Cass. pen., sez. III, ud. 2 1 settembre 2 0 1 6 , dep. 3 novembre 2 0 1 6 , n. 4 6 1 7 0 , CED 2 6 8 0 6 0 . www.lexambiente.it, 4 novembre 2 0 1 6 ; Cass. pen., Sez. III, ud. 2 7 ottobre 2 0 1 6 , dep. 3 marzo 2 0 1 7 , n. 1 0 5 1 5 , CED 2 6 9 2 7 4 , www.lexambiente.it, 2 8 marzo 2 0 1 7 ; Cass. pen., Sez. III, ud. 3 1 gennaio 2 0 1 7 , dep. 3 0 marzo 2 0 1 7 , n. 1 5 8 6 5 , CED 2 6 9 4 8 9 , www.lexambiente.it, 4 aprile 2 0 1 7 ; Cass. pen., Sez. III, ud. 1 5 marzo 2 0 1 7 , dep. 2 0 aprile 2 0 1 7 , n. 1 8 9 3 4 . www.lexambiente.it, 2 0 aprile 2 0 1 7 ; Cass. pen., Sez. III, ud. 6 luglio 2 0 1 7 , dep. 1 6 novembre 2 0 1 7 , n. 5 2 4 3 6 . www.lexambiente.it, 2 9 novembre 2 0 1 7 ;Cass. pen., Sez. III, ud. 9 novembre 2 0 1 7 , dep. 8 febbraio 2 0 1 8 , n. 5 8 3 4 ; Cass. pen., Sez. III, ud. 2 1 novembre 2 0 1 7 , dep. 1 2 marzo 2 0 1 8 , n. 1 0 8 0 8 . 7 Pulitanò 1 9 6 5 , 7 6 ff. distinguishes between authentic ‘clausole d i illiceità speciale’ and spurious ‘clausole d i illiceità speciale’. 6 208 LICIA SIRACUSA administrative proceedings, sanctioned independently by other criminal provisions8 . Special unlawfulness, in other words, would more precisely define the outlines of the punished conducts, avoiding recourse to the model of a free-form harm, which would create many difficulties, when used in the field of environmental protection, in view of the inescapable need of coordination of the criminal intervention with government environmental policies. 3 .2 The punished harm With reference to the profile of the harm, the crime in question provides for the incriminations of conducts which cause an ‘impairment’ or a ‘significant and measurable d eterioration’ of: 1) air water or extend ed and significant soil or subsoil portions; 2) an ecosystem, the biod iversity, also agrarian, of the flora or fauna. In this case too, as for the requirement of special unlawfulness, the text approved is somewhat different from the one discussed in the Chamber [of Deputies], in which instead the harmful event was described in terms of ‘consid erable impairment or d eterioration’. The definition of the object of the impairment was also different, first identified in the ‘status’ of water, air, soil and subsoil, and in the ecosystem (today, the reference is to an ecosystem). The amendments provided certainly improved the provision. Firstly, even though a definition of impairment and d eterioration is missing, nevertheless, having qualified these events in terms of significance and measurability has the purpose of connoting their content more precisely. In doctrine there are different ways of understanding the two terms. Some believe that impairment is a structural situation of functional disability and that d eterioration is a change in peius of the ecosystem (Masera, 2 0 1 5 , 4 ). Others consider that impairment is a more serious event than d eterioration. Impairment is a tendentially irreversible alteration, while d eterioration is considered a reversible alteration of the environment (Patrono 2 0 1 6 , 1 1 ; Catenacci, 2 0 1 5 b, 3 6 ; Amendola, 2 0 1 6 , 4 , nt. 1 3 ). The text approved is somewhat different from the one examined in the Chamber [of Deputies]: violations of the extra-penal regulation should not be seen as administrative or civil offenses. 8 IX. The recent Italian Reform of “Eco-crimes” 209 Finally, others believe that the two terms constitute an end iad i (De Santis 2 0 1 7 , 1 4 8 , Pavich 2 0 1 7 , 4 1 1 ). The Court of Cassation, for its part, has established that impairment indicates a functional imbalance, capable of affecting normal natural processes, while d eterioration implies a structural imbalance, wich is a deterioration in the state or quality of these processes9 . In particular, while replacement of the adjective consid erable with the adjective significant does not involve any appreciable variation from the quality point of view of the event, reference to the measurability of the deterioration is crucial. It in fact confines the event to damage which is effectively verifiable, in the same way as the level of contamination of the object of the impairment. The measurability of the deterioration obliges people to perform a retrospective comparison between the condition of the environment, as it was in that particular empirical context of action, before it took effect, and the quality condition of the environment as it proves to be after having suffered that action. In this way, while the provision defines the event at the same time it indicates a method to be followed for its assessment. It is a noteworthy expedient. It makes it possible to adjust and grade detection of the damage according to the characteristics of the initial empirical context which may be obviously very different from area to area, depending on the area of influence of human behaviour and of the preexisting level of pollution of the object of the impairment. In addition, further to allowing tangible delimitation and contextualization of the incidence of the conduct on the environmental status, reference to the measurability of the impairment also requirement implies acceptance of an environmental conception of an ‘eco-centricmod erate’ type, in which the latter is considered as a material consumable good, containing a plurality of impaired objects, in turn identifiable on a naturalistic level. And this certainly helps in the determination of the harmful event, which should be identified with reference to the affected portion of the good, namely the single material component of the environment involved by the action and actually damaged1 0 . Finally, the concept of measurability the impairment or deterioration also has the unquestionable merit of calling into question, within the assessment of the event, the use of threshold limits. The fact is that these Cass. pen., sez. III, 3 novembre 2 0 1 6 , n. 4 6 1 7 0 ; Cass. pen., sez. III, 3 marzo 2 0 1 7 , n. 1 0 5 1 5 ; Cass. pen., sez. III, 3 0 marzo 2 0 1 7 , n. 1 5 8 6 5 ; Cass. pen., sez. III, 2 0 aprile 2 0 1 7 , n. 1 8 9 3 4 ; Cass. pen., sez. III, 6 luglio 2 0 1 7 , n. 5 2 4 3 6 ; Cass. pen., sez. III, 9 novembre 2 0 1 7 , n. 5 8 3 4 . Cass. pen., sez III, 8 febbraio 2 0 1 9 , n. 6 2 6 8 . 10 On the ‘eco-centric-moderate’ conception of the environment, Siracusa 2 0 0 7 . 9 210 LICIA SIRACUSA values represent one of the most important evaluation parameters available to the judge for present and future valuation of an ecosystem’s level of contamination, since they set a threshold of tolerance that should vary with variation in the empirical reference context, in other words according to the different characteristics of that context. Certainly, the “significant” harmful event cannot be considered integrated by a single episode of exceeding the threshold limits, nor in the case of sporadic overrun and diluted over time. However, the inadequacy of the breach of the threshold limit which is merely occasional or isolated does not depend on the structural inadequacy of the reference to this type of index when it comes to determining the environmental damage1 1 , but rather the fact that the concept of measurability must be interpreted as closely related to the requirement of the significance of the harm. In addition, in order to more accurately describe the characteristics of the harmful event with reference to the alteration of the soil and subsoil, the new wording of article 4 5 2 bis c. p. states that the alteration is only considered when it involves extensive or significant portions of the good. Even such a statement, like the other profiles just outlined, appropriately restricts the scope of criminalization to particularly serious damaging events. The deletion of the reference to the ‘cond ition’ (of the quality) of water, air, soil and subsoil is also to be welcomed. In the previous version there was a particularly ambiguous notion of the environment, since it remained uncertain whether it was necessary to refer it to the material components of the environment, or also to the use that men could make of it (Ruga Riva 2 0 1 4 , 4 ). Once this element is removed, the lawmaker’s choice to embrace an eco-centric conception of environment, which already derives from other elements of the provision, is further confirmed. The function of marking out the harmful aspect of the action can finally be related to the fact that the latter is addressed not to damage to the ecosystem as a whole, but to a well determined ecosystem; which – once again –contributes to rendering less macroscopic the action to ascertain. Therefore, this action is relatable no longer to the entire ecosystem, whose dimension is by definition universal, but to a single micro-ecosystem, which relates to the scope of action of the punished conduct1 2 . As claimed by Masera, 2 0 1 5 , 5 . The jurisprudence also considers the exceeding of the parameters like an "alarm bell" for the judge, which is symptomatic of the damage. See: Cass. pen., sez. III, 3 novembre 2 0 1 6 , n. 4 6 1 7 0 ; Cass. pen., sez. III, 9 novembre 2 0 1 7 , n. 5 8 3 4 . 12 Agrees with us, D'Alessandro 2 0 1 6 , 9 8 . 11 IX. The recent Italian Reform of “Eco-crimes” 211 4 . The action cond uct of the environmental d isaster crime The new environmental disaster crime begins with a subsidiarity clause, which provides for its application “except where provid ed for by article 434 c.p.”. The latter represents an essential precaution, since it was also decided to include, amongst environmental disaster events, offences against public safety (article 4 5 2 quater c.p.). The function of the clause of the subsidiarity is to avoid the possibility of partial abolitio criminis with regard to serious pollution facts which are not punishable by art. 4 5 2 quater c.p. In other words, it is necessary to allow the application of the more general type of unnamed d isaster to all cases wich do not fall within the special type provided for in art. 4 5 2 quater (Ruga Riva 2 0 1 6 b; Riccardi 2 0 1 8 , 3 4 0 ). In this connection, without the abovementioned reserve clause, the particular nature of the good damaged in the latter case could potentially complicate the distinction between the scope of the provision in question and the unnamed disaster, which in fact protects a similar harm to the good of public safety. With reference to the punished behaviour, then, the provision describes a result crime which is characterized by a specific illegality requirement –as for the pollution crime –replacing the previous wording: “violation of legal and regulatory or ad ministrative provisions, specifically intend ed to protect the environment, whose non-respect constitutes itself an ad ministrative or criminal offence”. Therefore, with reference to this profile, the previous comment relevant to article 4 5 2 bis c.p. applies. This profile represents an illicitness clause which still delimitates the area of incrimination although it is attributable not only to the breach of regulatory requirements or regulations, or administrative measures, but also to failure to comply with precautionary cautions of any nature, also belonging to so-called ‘soft law’, or with common experience, intended to prevent harms either to the environment or to other legal interests (Siracusa 2 0 1 5 , 2 0 8 , 2 0 9 ; Ruga Riva 2 0 1 6 b,Ruga Riva, 2 0 1 5 d, 2 1 2 4 , 2 1 2 5 ; Miriello 2 0 1 5 , 1 0 3 5 ff.1 3 ). The use of the abovementioned wording is necessary to avoid the risk of the provision leaving uncovered cases of environmental disaster caused by conducts which do not infringe specific requirements to protect the environment (e.g., failure to exceed the limits specified in the tables), In contrast, others consider that this clause is more restrictive and that it refers only to illegal, unauthorised conduct. See, Amendola 2 0 1 5 b, Amendola 2 0 1 6 On this point, Cass. pen., sez. III, 3 luglio 2 0 1 9 , n. 2 9 9 0 1 , with the comment of Ripa, Lex ambiente - Riv. trim., 2 0 1 8 , 1 ff. See also the consolidated jurisprudencial guideline which concern the same clause contained in art. 4 5 2 bis c.p. 13 212 LICIA SIRACUSA either because they have not yet been issued at the time of the conduct, or because they are simply contained in non-binding ethical codes of conduct (Ruga Riva 2 0 1 4 , 5 -6 ). 4 .1 The event in the d isaster crime Article 4 5 2 quater c.p. punishes the action of causing an environmental ‘disaster’, namely a harmful event of significant size that may also involve goods other than the environment. The event of the crime is therefore of two types: a) it may affect the environment; b) it may damage public safety. As for the first type of harm, it consists of an irreversible alteration of an ecosystem’s balance; or alternatively, of alteration of an ecosystem whose recovery is particularly onerous and achievable only with exceptional measures. It results in a more serious impairment compared to the significant and measurable one referred to in the environmental pollution harm, since it is characterized by irreversibility. The second type of impairment is instead characterized not so much by the irreversibility of the damage, but rather by the inability to eliminate it, given the technical complexity of the restoration operation, or nonrecoverability, from an economic point of view (Masera 2 0 1 5 , 1 0 ; Ruga Riva 2 0 1 5 a, 3 2 ). Indeed, the description of the event a) (an irreversible alteration of an ecosystem’s balance; or alternatively, an alteration of an ecosystem whose recovery is particularly onerous and achievable only with exceptional measures) is very vague, because the terms used have an uncertain meaning. However, the doctrine suggests an interpretation that aim to counterbalance this potential indeterminacy. It is therefore proposed to read the concept of alteration in the light of the event punished by the less serious crime of environmental pollution (art. 4 5 2 bis c.p.); that is to consider the alteration of the environmental disaster as a similar environmental impairment or deterioration to those referred to in art. 4 5 2 bis c.p., but with irreversibility features - harm in progress - (Siracusa, 2 0 1 5 , 2 0 9 ff; Siracusa 2 0 1 7 ; Ruga Riva 2 0 1 5 a 3 1 ff.; Ruga Riva 2 0 1 5 d, 2 1 2 2 ). In both cases, as for the pollution crime, the lawmaker limits the impact of the event to an ecosystem, and does not extend it to the ecosystem as a whole. The risks of a probatio d iabolica for the occurrence of the harm are therefore considerably reduced; such risks would arise if IX. The recent Italian Reform of “Eco-crimes” 213 conversely the damage was linked to a macro-ecosystem. There is no doubt that the impairment of a single micro-ecosystem is basically always predictable and measurable, and therefore more easily verifiable ex post. Even more vague is the second type of harm (harm against public safety). The locution "harm against public safety" appears: a) on the one hand, incorrect, because the public safety can be offended only through crimes of endargement; b) on the other and, unintelligible, because this harm seems to be completely detached from a previous harm against environment (Masera 2 0 1 6 , 2 2 0 ; Bell, Valsecchi, 2 0 1 5 , 1 4 ). Also on this type of harm, some suggest an interpretation that would reduce its vagueness. It is considered implicit taht the harm against public safety constitutes the result of the progression of the previous harm against environment and that the expression “harm against public safety” is synonymous with end angerment (Ruga Rivad 2 0 1 5 , 2 1 2 3 , 2 1 2 4 ; Siracusa 2 0 1 5 , 2 1 0 , 2 1 1 ; Siracusa 2 0 1 7 ; Miriello 2 0 1 5 ,1 0 4 0 , contra, Padovani 2 0 1 5 , 1 1 Accinni 2 0 1 8 , 1 2 1 ss. ). The second type of harm (harm against public safety), it represents a dangerous event (end argement) that has to derive from a significant harmful event, or taking into consideration the extent of impairment to the environment, or the diffusion of the harmful effects; or, finally, the number of individuals harmed or placed in danger. The ratio of the provision is to ensure adequate coverage by criminal law for cases of disasters which, even if they have not caused an irreversible alteration of an ecosystem, or a potential irreversible alteration, yet have such a harmful size as to endanger the safety of individuals1 4 . Therefore, in the case of an harm against public safety resulting from extended impairment of the environment or from the spread of its harmful effects, the harm against environment is considered as a event prodromal to subsequent endangerment of public safety, according to the model of ‘reati di comune pericolo’ (common end angerment crimes) (Parodi Giusino 1 9 9 0 , 2 5 4 ; Ardizzone 1 9 9 2 , 3 6 1 ff.; Gargani 2 0 0 5 , 2 1 0 ff.; 4 7 6 ff.; Gargani 2 0 0 8 , 3 ff.). The proposed wording for the categorization of the event is not entirely convincing. Firstly, the reference to the extension of the impairment as a parameter to which to link the subsequent likelihood of the action to put life or public health in danger shows excessive vagueness. If additional specifications are lacking with reference to the size that the damage to the environment has to assume in order to be able to project Recently, this reading was accepted by the Court of Cassation in one of the first judgments on this matter, see Cass. pen., sez. III, 3 luglio 2 0 1 8 , n. 2 9 9 0 1 ; Mazzanti 2 0 1 8 . 14 214 LICIA SIRACUSA its harmful potentialities against life or an indeterminate number of individuals, any valuation on this aspect is at the discretion of the judge, with the risk of enormous disparities in treatment, compared to events of similar magnitude. For example, it remains uncertain whether the extension of the impairment should be understood in space/material terms, namely by referring to the naturalistic dimension; or if it should be interpreted in terms of time, as an extension and permanency of the environmental damage. No less problematic is the possibility –provided for in the provision –to link the magnitude of the environmental damage, which is likely to create a situation of danger to life or to physical integrity of individuals, to the requirement of the extension of its harmful effects. Even in this circumstance, indeed, it is not specified whether the harmful effects that the event produces with reference to goods other than the environmental one should be taken into account, or alternatively –as indeed is more plausible –only the damage caused to the ecosystem is to be taken into consideration. The fact that the latter solution is the one most consistent with the structure of the crime seems confirmed by the final parameter, which is selected as a further possible identification requirement of the disaster event: namely the number of individuals injured or placed in danger. It is clear that in this case reference is made to single events which are detrimental to the life or safety of individuals (death or injury) arising from the pollutant event, which, however, certainly represent ‘damaging effects’ for the environment. As a result, according to an interpretation by reference (i.e., per relationem), these effects should result in an independent manner, as separate from ‘further’ harmful effects mentioned in point 3 ) of the incriminating provision. The requirement of the number of people injured is superfluous. This is an implicit requirement of the very notion of harm against public safety. The latter, due to its nature, focuses on an indefinite plurality of victims, or of potential victims. 5 . Deaths or injuries caused by pollution events (art. 452 ter c.p.) The reform introduced a provision in the eco-crime system providing for an increase of punishment for cases of death or injury caused by events of environmental pollution as referred to in art. 4 5 2 bis c.p. (art 4 5 2 ter c.p.). This provision certainly has a precise systematic consistency: it more severely punishes cases of damage to the environment that have also caused death or injury of one of more individuals, in order to ensure a IX. The recent Italian Reform of “Eco-crimes” 215 sanction which is proportionate to the increased severity of an objectively multi-harmful fact. In the legal framework, deaths or personal injuries caused by the pollution harm do not appear as constitutive elements of the environmental disaster harm. These are further and different events that have to be proved ex post. Hence, in this case, it is necessary that a precise and demonstrated etiological connection exist between events: polluting conduct, on one side, and deaths or injuries to individuals, on the other side. The most severe punishment for death or injury is provided only for environmental pollution crime, and not for more serious crime of d isaster. In this case, as mentioned, the harm against public safety may be considered regardless of the concrete results of the single events which are harmful for the victims’ life or health. This approach successfully developed on the model of harmful progression, from environmental damage to possible harm to individuals, and on the paradigm of ‘dematerialization’ of single harmful events against victims, in view of the wider harm to public safety. But it does not solve the problem of the correct classification of single deaths or single personal injuries which may derive from the environmental disaster. In such a case, indeed, if deaths or injuries are proved within a trial as directly or indirectly wanted by the acting subject, they are not included in the event of the environmental disaster crime, and they should be considered independently, pursuant to other crimes, other than that referred to in article 4 5 2 ter c.p., which specifically concerns only deaths or injuries causes by the environmental pollution crime (agree with us, Ruga Riva 2 0 1 5 d, 2 1 1 7 ; Manna 2 0 1 5 , 9 8 3 , 9 8 4 ). 6 . The omitted remed iation crime (art. 452 terd ecies c.p.) and the ord er to restore the cond ition of the location (art. 452 duodecies c.p.) The introduction of the omitted remediation crime and the compulsory measure of the order to restore the condition of the location are amongst the main changes in the reform discussed here. Compared with the corresponding incrimination ex art. 2 5 7 of the TUAMB [i.e., Testo Unico sull’Ambiente, namely the Italian “Consolid ated Law on Environmental Matters”] the nature of which still remains unclear, the new omitted remediation crime undoubtedly constitutes an omission in which the legal obligation to proceed with the restoration of the location may arise from the law, from a court order or from a decision by a public authority (Ramacci 2 0 0 9 , 3 3 9 ; Ramacci 2 0 0 6 , 1 9 6 ff.; Vergine 2 0 0 9 , 9 8 1 ff.; Micheletti 2 0 0 7 , 3 4 9 ff.; Paone 2 0 0 8 , 1 1 9 ff.; Ruga Riva 2 0 1 1 , 1 4 1 ). 216 LICIA SIRACUSA Thus, the provision does not expressly indicate the prerequisite from which the obligation of the person to remediate comes. Therefore, it can emerge both in the case of minor alterations of the ecological balance, and for more serious alterations, provided that they are reversible. No obligation to restore is activated in case of an environmental disaster, where the environmental harm is described as irreversible, or as so significant as to make its removal particularly complex, if not impossible. This crime seems to be a real closure norm, which aims at increasing the overall punitive level of the system and at ensuring the effectiveness of the orders for reintegration, remediation and reparation of the damage which are contemplated in the current regulation, whatever their matrix is (judicial, legislative or administrative), and therefore, even if they are executed for the sanctions referred to in the TUAMB (without prejudice to the limits of coordination with the corresponding incrimination referred to in article 2 5 7 of the TUAMB) (De Santis 2 0 1 5 , 2 0 9 6 ). The origin of the provision is therefore the concept that in case of non-implementation of the obligation to repair the harm to the environment, the threat of punishment acts as an effective counter-thrust or as a barrier against the risk of non-fulfilment. However, such a method of intimidation, although abstractly credible, can reserve unpleasant surprises in practice, as indeed can be seen given the lack of deterrent effect so far demonstrated by the corresponding crimination of omitted remediation of the sites provided for in the TUAMB. For the purposes of the new omitted remediation crime, the order to restore the condition of the location provided by the judge pursuant to article 4 5 2 d uod ecies c.p. could also represent the source of the obligation to act, which is possibly ignored. As the reference to the second paragraph of article 4 5 2 d uod ecies c.p. of the provisions of Title II of Part VI of the TUAMB confirms, which refers to restoration imposed by the Administrative Authority, such an order would indeed appear as relevant to administrative sanctions and not to additional penalties. Therefore, its fulfilment, which is not achievable with means of enforcement, would be criminally sanctioned under article 4 5 2 terd ieces c.p. The decision to incriminate non-fulfilment of the restoration requirements is meant to counterbalance the impossibility of proceeding by way of a compulsory execution in case of non-fulfilment, since it does not represent an additional penalty. However, this does not protect against the ineffectiveness risk. In this connection, the extra-penal nature of the order provided by article 4 5 2 d uod ecies c.p. subtracts the methods of execution from judicial verification by an authority, which is therefore deprived of any power to IX. The recent Italian Reform of “Eco-crimes” 217 intervene with an executive action (i.e., in executivis). This considerably reduces the chances of effective implementation, which are entrusted to the changing capacity for control of the public administration1 5 . The ‘new’ restoration order ultimately lends itself to being far more clearly qualified as a ‘hybrid ’ sanction, halfway between criminal and administrative law. It seems to be a necessary accessory consequence of a conviction or ‘plea bargaining’ judgment, but one having an administrative, not a criminal nature, as demonstrated by some aspects of its discipline. First, it is not an additional penalty given the reference to the conviction judgement issued pursuant to article 4 4 4 of the Criminal Procedure Code, which, as is well known, does not require the application of additional penalties. Second, the reference to the provisions on the administrative environmental restoration regulated by the TUAMB is in favour of equalization of the two institutions, with reference to their legal nature. Finally, the necessity of an explicit indication by the judge prevents one from qualifying it as a ‘criminal effect of the conviction’, which instead automatically follows from the judgment, without any need of a specific mention1 6 . With reference to this instrument, however, it should be highlighted that the concrete possibilities to effectively operate are further reduced by the use of the term ‘recovery’ which has an ambiguous meaning, since it is typically used in the specific context of the treatment of waste reuse1 7 . It is an indeterminate concept that lends itself to various interpretations. The most correct interpretation is probably based on the ‘technical’ (and extrajudicial) meaning of the expression ‘environmental recovery’. From a technical perspective, this term usually means the set of operations involving both the remediation or elimination of the ‘signs’ of human action which have altered the environment, and the restoration of the previous ‘ecological’ state of places. But this understanding of the word ‘recovery’ would conflict with the literal wording of the provision which, instead, expressly distinguishes between recovery and restoration, attributing to the latter an autonomous meaning, not covered by the more general concept of ‘recovery’. There are several proposals to increase the effectiveness of the measures of reintegration, remediation and reparation of the damage. Some propose to use these measures as alternative sanctions to brief detention and others as extenuating circumstances. See Fondaroli 1 9 9 9 , 5 5 4 ff. Others suggest using these measures as conditions for probation, see Palazzo, 2 0 0 7 ; Palazzo and Bartoli 2 0 0 7 , 1 5 ff. 16 Ope legis; see Marinucci 2 0 0 6 , 5 0 3 and Mantovani 2 0 1 3 , 8 0 0 . 17 Molino, Relazione d ell’Ufficio d el Massimario d ella Corte d i Cassazione sulla Legge 22 maggio 2015, n. 68, published 2 9 May 2 0 1 5 , 3 1 . 15 218 LICIA SIRACUSA It is possible, therefore, that with the word ‘recovery’ the lawmaker only refers to the first type of activity of which it technically consists, namely the less complex activities of ‘cleaning up’ the marks of human intervention. Therefore, recovery should be understood in more restrictive terms such as essential cleaning up of places; instead, restoration is a possible operation which is ordered by the judge only “where technically feasible”, as it is generally very difficult (Ramacci 2 0 1 7 , 5 2 ). 7 . The crime of trafficking and aband onment of highly rad ioactive material (article 452 sexies c.p.) Article 452 sexies c.p. describes a mixed alternative crime that punishes a wide range of conducts involving ‘high-level radioactive material’. Amongst these, the last in order of enumeration is illegal abandonment of these substances. The sequence followed by the lawmaker in the categorization of behaviours that may be taken into consideration appears indeed correct, as it corresponds to the material phenomena of illicit trafficking of hazardous material, which typically sees in the conduct of ‘illicitly d iscard ing’ the final destination of the circuit of unlawful management. As for disaster and environmental pollution harm, even in this crime in question the requirement of the illegality of the conduct is provided, which is intended to restrict the scope of application to cases of not legally justified conducts, since they are not duly licensed, or since they are unlawful under other law provisions. In this regard, the reason for the repetition of the adverb illicitly referring to the conduct of discard remains incomprehensible, since the expression unlawfully used at the beginning of the provision is quite clearly a requirement attributable to each of the behaviours described. This is an unnecessary duplication, with a completely obscure meaning. The provision also provides for an increased penalty for cases in which danger to water or air, or to extended and significant portions of the soil or subsoil derives from the trafficking of radioactive substances, or, furthermore, to an ecosystem and even agrarian, flora and fauna biodiversity. A further aggravation of punishment is finally established for cases of danger to the life or safety of individuals. The most severe punishment corresponds to aggravation of the harm, which passes from an abstract and general danger of the conduct of illicit trafficking as referred to in the first paragraph, with reference to an indefinite number of goods or interests, to real danger to specifically identified goods (environment, flora and fauna, life or safety of individuals). A concrete dangerous crime occurs, focusing on the effective verification of a dangerous event that comes from illicit trafficking in or abandonment of radioactive material. IX. The recent Italian Reform of “Eco-crimes” 219 Finally, it should be noted that the provision could in theory conflict with a correspondent incrimination e provided for by article 3 of Law no. 7 0 4 of August 1 9 8 2 , which states that “Whoever, without authorization, receives, possesses, uses, transfers, transforms, sells or d isperses nuclear material in ord er to cause d eath or serious or severe personal injury to one or more ind ivid uals or the risk of those events, without prejud ice to the provisions of articles 589 and 590 of the Criminal Cod e, shall be punished with imprisonment up to two years. When only a particularly serious propriety d anger is caused or there is the risk of such an event, the punishment of imprisonment up to one year shall apply”. As highlighted in the Report of the Ufficio d el Massimario [i.e., Office of the Abstracts] of the Court of Cassation, the issue of coordination between the two provisions is certainly set up for cases where one of the conducts of illicit trafficking causes a danger to life or to safety of individuals. The overlap in its practical application may in any case be bypassed by interpreting the notion of ‘high-level radioactive material’ referred to in the new article 4 5 2 sexies c.p. as narrower, compared to the more generic and broader notion of ‘nuclear material’ as referred to in the provision of the abovementioned special law. In order to avoid misconstructions, however, the lawmaker would have done better to coordinate the two incriminations, also including the express abolition of article 3 of Law no. 7 0 4 of August 1 9 8 2 . Other coordination problems are finally outlined with reference to the aggravated circumstance provided for in the second paragraph of article 2 6 0 of the TUAMB, which more severely punishes activities organized for illegal trafficking of waste involving highly radioactive waste. Under the subsidiarity clause set forth in article 4 5 2 sexies c.p., if all the elements of criminalization occur –and firstly the fact that highly radioactive material should be seen as waste –article 2 6 0 of the TUAMB seems to include the less serious crime under the new Law1 8 (Telesca 2 0 1 6 , 7 7 ff.). 8 . Active repentance The provision which contemplates active repentance (art. 4 5 2 d ecies c.p.) describes a plurality of heterogeneous behaviours to which a reduction of the punishment is connected. Active repentance conducts similar to those referred to in the mitigating circumstance set forth by art. 6 2 , no. 6 c.p. are accompanied by conducts which are See Relazione d ell’Ufficio d el Massimario d ella Corte d i Cassazione sulla Legge 22 maggio 2015, n. 68. 18 220 LICIA SIRACUSA remedial to the environmental crime and also by forms of plea bargaining, which are inspired instead by a truly rewarding type of logic (Ruga Riva 2 0 1 4 , 9 -1 0 ). Before describing the different characteristics of each of the abovementioned circumstances, it is better to start by saying how the inspiring model that underlies it –which focuses on the incentive to the reo represented by the award of a penalty benefit –is subject to the risk of being ineffective in practice, when other aggravating circumstances occur, and as a result of the correlative balancing judgement. As already highlighted with reference to other profiles of the new law, also with reference to active repentance a significant disconnection could occur in the future between the abstract provisions relevant to the size and effects of the reform and the much more modest size that certain institutions introduced by it are likely to assume in practice, under the test of practical application (in this sense, Telesca 2 0 1 5 , 1 3 - 1 4 ). Active repentance in the strict sense includes two categories of conducts which are subsequent to the crime: 1 ) the first conduct consists of striving to prevent the criminal activity leading to further consequences; 2 ) the second instead consists of having in practice striven, before the opening of the hearing, for the safety, cleaning and, where possible, the restoration of the condition of the location. 1 ) The first kind of repentance constitutes a special mitigating circumstance (and with special effect, i.e., ad effetto speciale) corresponding to the common kind of repentance under art. 6 2 , no. 6 c.p. from which, however, it differs for the absence of reference to the spontaneity and efficacy of the behavior enacted. As a result, the new mitigating circumstance does not have a subjective character and it leaves aside the reasons which drive the offender to act in order to stop the negative effects of the criminal action. Although it is not specifically mentioned, the requirement of ‘voluntariness’ nevertheless should be considered as implicitly present, since it represents an indispensable condition to subjectively attribute the behaviour to the individual for the proper functioning of the motivating effect (Prosdocimi 1 9 8 2 , 2 9 6 ), of the award and, as an indispensable element to distinguish the essential features of the institution from similar reparative conducts as envisaged in the new Title on environmental offences, which surely have a rather coercive nature1 9 . Regarding the interpretation of the word ‘effectively’ in active repentance in art. 6 2 , no. 6 c.p. see Mantovani 2 0 1 3 , 4 2 7 - 4 2 8 and M. Romano 2 0 0 4 , 6 7 8 . 19 IX. The recent Italian Reform of “Eco-crimes” 221 Moreover, the adverb effectively being absent, the reduced sentence may be considered as operating even when repentance is not concretely appropriate to attain the desired objective. Compared to the corresponding circumstance provided for in article 6 2 no. 6 of the c.p., the environmental mitigating circumstance does not specify the nature of the dangerous or damaging consequences to eliminate, but defines them as ‘further consequences’ of the criminal action. They are therefore necessarily different from the typical harm. As opposed to those described in the common mitigating circumstance –which may or may not coincide with the detrimental results of the typical harm (Spena 2 0 0 9 , 6 7 3 -6 7 4 ) – the further consequences referred to in art. 4 5 2 d ecies c.p. should constitute harmful results which are not dangerous or harmful with reference to the protected legal interest, and therefore not relevant to the typical harm. This, moreover, is consistent with the wording of the provision since it would provide an explanation for the decision of the lawmaker to distinguish, within active withdrawal, such conduct from the different conduct of safety, remediation and restoration of the locations, which instead with all evidence eliminates or attenuates the harm (typical) inflicted on the environment. 2 ) The second kind of post d elictum withdrawal conduct (which precisely consists in having effectively strived for the safety, the reclamation and, where possible, the restoration of the locations, before the opening of the hearing) represents a special mitigating circumstance (and one with a special effect) relevant to reparation conducts which are subsequent to the event and aim at eliminating or reducing the typical damaging effects against the environment. In this case, the lawmaker classified in detail the counter-behaviour to be implemented, through the reference to already defined technical operations as already mentioned in art. 2 4 0 of the TUAMB. In particular, safety consists of the following: operational action, “a set of measures performed in a site with continuing operations aimed at ensuring an ad equate level of safety for ind ivid uals and for the environment, while awaiting further permanent safety or remed iation measures to be carried out once the activity is terminated . They also includ e contamination containment measures to be put in place as a transitional measure until the accomplishment of the permanent remed iation or safety measures, in ord er to prevent the spread of contamination within the same matrix or between d ifferent matrices. In such cases, appropriate monitoring and control plans have to be implemented in ord er to confirm the effectiveness of the solutions” (art. 2 4 0 , letter n) of the TUAMB); permanent action, “a set of measures aimed at permanently isolating polluting sources with reference to the surround ing environmental matrices and at ensuring a high and 222 LICIA SIRACUSA permanent level of security for ind ivid uals and for the environment. In such cases monitoring and control plans and usage limitations with reference to the provisions of the town-planning regulations have to be provid ed (art. 2 4 0 letter o) of the TUAMB). While remediation involves the fulfilment of “the set of measures d esigned to eliminate sources of pollution and polluting substances or to red uce the concentrations of the latter which are present in the soil, subsoil and ground water to the same level as or a lower one than the values of the risk concentration threshold (CSR)” (art. 2 4 0 , letter p) of the TUAMB). Finally, pursuant to art. 2 4 0 letter q) of the TUAMB, restoration includes, “environmental reuse and land scaping measures, also complementing the permanent remed iation or safety measures, which make it possible to recover the site to actual and final usability for the intend ed use which complies with town-planning regulations” (Torre 2 0 1 5 , 1 0 7 0 ). With reference to this kind of repentance, the greatest interpretative difficulty concerns the requirement of the measure’s ‘effectiveness’, which points to an obligation to achieve a result, rather than to a mere obligation to act, with the consequence of having to link the award to the effective realization of the safety, reclamation and, if possible, recovery works. Nevertheless, such a reading does not seem to match the literal wording of the provision which, with the use of the verb ‘strive’ seems instead to connect the reduction of the punishment to the fact that the person takes the initiative of the above activities and starts them concretely, without requiring proof of their completion. By construing the provision in this way however, if on the one hand, we remain consistent with its literal wording, on the other hand, some uncertainties remain with reference to the initial moment in which to anchor the ‘having effectively striven’ of the individual. It is not clear whether we should refer to the empirically verifiable initiation of the remediation operations or rather to the definitive approval of the operational project or to its presentation, or, if the completion of the preliminary remediation is indeed necessary. Undoubtedly, such uncertain profiles can greatly complicate practical assessment of the harm, which therefore should be handled with extreme caution in judicial proceedings, especially in light of the size of rewarding effects produced by it, which go beyond simple reduction of the punishment and extend to the opportunity for the accused to obtain from the judge, following an express request, both suspension of the criminal trial and its prescription, for a maximum period of three years. Finally, amongst concerns relevant to the interpretation which are raised by the provision, those arising from the requirement of the necessary implementation of the restorative conducts ‘before the opening of the hearing’, which would prevent its application within the special IX. The recent Italian Reform of “Eco-crimes” 223 proceedings, cannot be underestimated. It is surely an abstractly questionable legislative choice given its contradiction with the principle of equality. And yet it may have found its reasons in the difficulties for the lawmaker to reconcile the long waiting times of remediation and restoration with the rapidity relevant to alternative proceedings, to the extent that a possible extension to the latter looks unreasonable. In the absence of relevant precedents, however, it is not to be excluded that case-law can choose to fill this discrepancy during sentencing, also extending to special proceedings the possibility of invoking the circumstance in question. 2 ) Amongst the post d elictum conducts which can lead to a reduction of the sentence, art. 4 5 2 d ecies c.p. finally includes behaviours that do not affect the typical harm, nor other harmful consequences of the crime, but are only intended to facilitate investigations and to promote ascertainment of the action, identification of the offenders and depletion of major resources through commission of offences. What is involved here is therefore the presence of active repentance with a proced ural nature (Padovani 1 9 8 1 , 4 1 7 ff.; C. Ruga Riva 2 0 0 0 , 3 4 7 ff.), in which the reason of the award is to be found in the interest of the state to encourage support measures to the judicial authority in the prosecution of offences, rather than in the lesser gravity that the action involves when it is followed by a behaviour of mitigation or reparation of the damage done2 0 . 9 . The extinction of the crime for the course of time (prescrizione del reato) Paragraph 6 of art.1 of Law no. 6 8 of 2 0 1 5 provides that for the new environmental crimes the time of extinction of the crime periods is doubled compared to the ordinary ones as referred to by art. 1 5 7 c.p. Given the high punishment levels provided by criminal law for the new crimes, the decision to double the “prescrizione d el reato” periods indeed appears to be inappropriate and excessive. The lawmaker was overwhelmed by a repressive ‘rush’, which shows through in a clear manner in other points of the reform (Catenacci 2 0 1 6 , 4 5 7 ; Patrono 2 0 1 6 , 1 9 ). There is no doubt that this provision is meant to resolve the issues which have arisen from asbestos crime trials with reference to the relative Padovani 1 9 8 6 , 4 2 0 and Spena 2 0 0 9 , 6 7 4 think that the lack of a link between the action committed and the liability of the author makes active repentance a proced ural law institute. Contra, Ruga Riva 2 0 0 2 , 3 9 3 ff. 20 224 LICIA SIRACUSA shortness of time for extinction of the unnamed disaster crime and to the difficult of determining the commencement of the extinction period. While meeting the specific concerns of the practice which, in the case of “prescrizione d el reato”, however, are linked to the determined effort to adjust the applicable incriminating provisions to the peculiarities of the facts of atypical environmental disaster with reference to the latter, the lawmaker did not realize, however the superfluity of the provision in question. Its occurrence was evidently rendered unnecessary by the overall structure of the new rules both with reference to long “prescrizione d el reato” periods related to the high punishment levels provided by criminal law for environmental crimes, and also by the fact that the commencement of the initial periodo of “prescrizione d el reato” could now be identified with certainty at the time, of verification of the harmful event, both for the new environmental pollution harm and for the new environmental crime of disaster (Cottu 2 0 1 8 , 2 7 2 ff.). 1 0 . A concise ‘evaluation’ in a future perspective Some essential features of the reform that undoubtedly deeply innovate environmental criminal law emerge from the rapid assessment undertaken here of some changes introduced by Law no. 6 8 of 2 0 1 5 on eco-crimes and, at the same time reveal the firm intention of the lawmaker to strengthen the punitive response for environmental crimes. The reference is mainly to the decision to place environmental crimes in the Criminal Code, to provide for result-crimes that are placed alongside conduct crimes under the special legislation, to establish particularly severe punishments for new crimes, and to introduce a special aggravating circumstance for criminal conspiracy aimed at committing environmental crimes (art. 4 5 2 septies c.p.), and so on. The overall structure of the text, therefore, denotes a particularly repressive rigor, which is certainly inspired by political-cxriminal concerns which underpin the initiative. However, at least with reference to the punishment levels provided by criminal law for the new incriminations, the text is overall proportionate to the size of the punishable harms (irreversible alterations, significant and measurable impairment of the environment, harm against public safety, etc.). Some excesses produced by the repressive rush of the lawmaker, such as the abovementioned aggravating environmental circumstance, or the classification in a disguised form of negligent attempt to commit a crime, or even and excessively long “prescrizione d el reato”, appear disproportionate. With reference to classification of the harms, it has already been pointed out that the prospect of placing side by side damage and endargement (result crimes and cond uct crimes) appears reasonable, IX. The recent Italian Reform of “Eco-crimes” 225 although it does not overcome the difficulties related to the assessment of causation in the environmental field, especially when the conducts taken into consideration do not consist in a repeated and persistent violation of preventive precautionary rules, but represent isolated and fragmented contributions to the causal process that leads to the event. Probably, in order to by-pass the risk that new incriminations are difficult to apply in practice in terms of causation, the verb ‘causing’ should be replaced with a more complex wording, which refers both to conducts as ‘complex’, namely consisting of several actions or omissions which went on over time and which determined both the production of the detrimental situation, and their continuation, and further to conducts also formed by a single action or omission that have concretely contributed to the realization of the event. Finally, notwithstanding the efforts made in developing criminal law proposals which are able to reduce the gap between legal certainty and the uncertainty of science, the new environmental criminal law still remains exposed to difficulties in the process of adaptation to constant developments in knowledge and to contexts of substantial scientific uncertainty. In this respect indeed, any attempt to reform environmental crimes inevitably comes up against the problem of the tendency of the negligence, and with the unstable effects of the precautionary principle in criminal law matters. Thus, once the much-debated barrier of the futility of environmental harms with a naturalistic event is overcome, new stimulating and perhaps equally complex horizons open up on the ground of both negligence and intentional guilt. If, as reported, negligence calls into question the issue of predictability of risks in the same way as the level of available knowledge and of their higher or lower scientific reliability, the provision relevant to criminal intention instead ends up impacting the meaning of the punished conduct, changing its typical features. This is because the will for both noncompliance with extra-penal provisions, and for the event which is necessary to integrate the criminal intent of the environmental crimes, while it is well suited for the kinds of conducts which are defined above as ‘complex’, is hardly appropriate with reference to individual isolated actions or omissions. Finally, on the background of the reform there still remains the question of an overall reconsideration of the environmental criminal fines (contravvenzioni) set forth in the special legislation which remained unchanged. Law no. 6 8 of 2 0 1 5 dedicates to the latter only a provision for a new cause of extinction of the offence (art. 3 1 8 -bis, 3 1 8 -ter, 3 1 8 quarter, 3 1 8 quinquies, 3 1 8 sexies, 3 1 8 septies and 3 1 8 octies of the TUAMB), whose application remains uncertain, however, due to a few textual inconsistencies. 226 LICIA SIRACUSA In this connection, the new part containing the regulation of the abovementioned cause of extinction included in the TUAMB is called “Sanctions for ad ministrative and criminal offenses in the field of environmental protection”, but its scope, as defined by article 3 1 8 bis, is limited to the fines (contravvenzioni) of the TUAMB. Thus, it is unclear whether the new institution will also apply to environmental administrative offences, or whether it may be extended to environmental fines (contravvenzioni) placed outside the TUAMB2 1 . Failure to begin a reform also with reference to environmental fines (contravvenzioni) is therefore likely to push the latter towards the inexorable fate of elimination/extinction ‘in practice’. The shorter periods of “prescrizione d el reato” (which need more to be doubled compared to those relevant to the new environmental crimes), the risk of nonpunishment because of the tenuous nature of the fact, which no doubt will have a privileged scope in the field of environmental fines (contravvenzioni), the difficulties of coordination of a possible concurrence between the old and the new incriminating provisions (in most cases, intended to lead to inclusion in each other, mainly because of the nature of the fines of the extra-code incriminations) are all elements which anticipate a definitive decline of the environmental crimes of endargement. When considering the practical difficulties faced by the reform, the repressive expectations linked to it are likely to remain deeply disappointed. The joint effect of the two factors mentioned, namely, the disappearance of the barrier placed by the protection model which is focused on anticipation of the harmful threshold on one side, and the occasional use of newly minted crimes, on the other side, could indeed significantly reduce the effectiveness level of the environmental protection. This would repudiate, at least in part, the inspiration of the whole reform, which was addressed to achieving an overall strengthening of the system of prevention and the suppression of ecological harms. The Reform is too recent to allow an assessment of its results. However, a few years after its entry into force, some important trends have emerged: 1 ) a significant increase in criminal proceedings; 2 ) most of the cases concern the environmental pollution crime (art. 4 5 2 bis c.p.); 3 ) a small increase in cases of the environmental disaster crime (art. 4 5 2 quater c.p.); 4 ) low application of other crimes. 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Gargani, A. 2 0 0 8 . Reati contro la pubblica incolumità. Trattato d i d iritto penale, ed. C. F. Grosso, T. Padovani and A. Pagliaro, Tomo I. Milano: Giuffrè. Guariniello, R. 1 9 9 9 . I tumori professionali nella giurisprudenza penale. Foro italiano: 2 3 7 ff. Guariniello, R. 2 0 0 0 . Malattie professionali, tumori da amianto, asbestosi. Foro italiano: 2 7 8 ff. Insolera, G. and L. Montuschi. 2 0 0 6 . Il rischio d a amianto. Questioni sulla responsabilità civile e penale. Bologna: Bononia University Press. Laganà, A. 1 9 9 9 . Tutela dell’ambiente e principio di offensività. Giustizia penale: 2 2 3 ff. Lo Monte, E. 2 0 0 8 . Uno sguardo sullo Schema di Legge Delega per la riforma dei reati in materia di ambiente: nuovi “orchestrali” per vecchi “spartiti”. Rivista trimestrale d i d iritto penale d ell’economia: 5 5 ff. Manna, A.. 2 0 1 5 . La legge sui c.d. eco-reati: riflessioni critiche di carattere introduttivo. Trattato d i d iritto penale. Parte generale e speciale. Riforme 2 0 0 8 -2 0 1 5 . ed. Cadoppi, A., Canestrari, S., Manna, A., Papa, M. Milano: Utet: 9 7 1 ff. Manna, A. (ed.) 2 0 1 6 . Il nuovo d iritto penale d ell'ambiente (legge 2 2 maggio 2 0 1 5 , n. 6 8 ), Roma: Dike Giuridica Editrice. Mantovani, F. 2 0 1 3 . Diritto penale. Padova: Cedam. Marinucci, G. 2 0 0 6 . Manuale d i d iritto penale, Parte Generale. Milano: Giuffrè. Masera, L. 2 0 1 0 . Danni da amianto e diritto penale. Diritto penale contemporaneo. 2 9 ottobre 2 0 1 0 . Masera, L. 2 0 1 1 . La malattia professionale e il diritto penale. Diritto penale contemporaneo. 1 0 novembre 2 0 1 1 . IX. The recent Italian Reform of “Eco-crimes” 229 Masera, L., I nuovi delitti contro l'ambiente (Voce per il "Libro dell'anno del diritto Treccani 2 0 1 6 "). Diritto penale contemporaneo. 1 7 dicembre 2 0 1 5 . Masera, L. 2 0 1 6 . La riforma del diritto penale dell'ambiente. Costituzionalismo.it, 1 febbraio 2 0 1 6 . Melzi d'Eril C. 2 0 1 8 . L'inquinamento ambientale a tre anni dall'entrata in vigore. Diritto penale contemporaneo - Rivista trimestrale: 3 5 ff. Mazzanti, E. Primi chiarimenti (e nuove questioni) in materia di disastro ambientale con offesa alla pubblica incolumità. Diritto penale contemporaneo. 1 1 ottobre 2 0 1 8 . Martufi, A. 2 0 1 8 . La "diversione" ambientale tra esigenze deflattive e nuove tensioni sistemiche. Alcune annotazioni in merito alla procedura estintiva prevista per le contravvenzioni del dlgs. 3 aprile 2 0 0 6 n. 1 5 2 . Diritto penale contemporaneo - Rivista trimestrale: 2 9 3 ff. Micheletti, D. 2 0 0 7 . sub art. 2 5 7 . Cod ice d ei reati e d egli illeciti ambientali, ed. F. Giunta. Padova: Cedam. Miriello, A., 2 0 1 5 . Disastro ambientale. In Trattato d i d iritto penale. Parte generale e speciale. Riforma 2 0 0 8 -2 0 1 5 . Cadoppi, A., Canestrari, S., Manna, A., Papa, M., (ed.), Milano: Utet. 1 0 2 8 ff. Molino, P. 2 0 1 5 , Novità Legislative: Legge n.6 8 del 2 2 maggio 2 0 1 5 , recante "Disposizioni in materia di delitti contro l'ambiente" (Relazione dell'Ufficio del massimario della Cassazione). www.cassazione.it, 2 9 maggio 2 0 1 5 . Orsina, A. 2 0 1 5 . Rischio d a incertezza scientifica e mod elli d i tutela penale, Torino: Giappichelli. Padovani, T. 1 9 8 1 . La soave inquisizione. Osservazioni e rilievi a proposito delle nuove ipotesi di “ravvedimento”. Rivista italiana d i d iritto e proced ura penale: 5 2 9 ff. Padovani, T. 1 9 8 6 . Il traffico delle indulgenze. “Premio” e “corrispettivo” nella dinamica della punibilità. Rivista italiana d i d iritto e proced ura penale: 3 9 8 ff. Padovani, T. 2 0 1 5 . Legge sugli ecoreati, un impianto inefficace che non aiuta l’ambiente. Guid a al d iritto n. 3 2 : 1 0 ff. Pagliaro, A. 2 0 0 9 a. Aspetti giuridici della prevenzione. Il d iritto penale tra norma e società, III, 8 9 1 ff. Milano: Giuffrè. Pagliaro, A. 2 0 0 9 b. Prevenzione generale e prevenzione specifica (o speciale). Il d iritto penale tra norma e società, III, 1 0 6 7 ff, Milano: Giuffrè Palazzo, F. 2 0 0 7 . Trasformazione o declino del sistema della sospensione condizionale della pena nel sistema italiano? Certezza o flessibilità della pena?, ed. F. Palazzo and R. Bartoli. Torino: Giappichelli. Palazzo, F. 2 0 1 1 . Morti da amianto e colpa penale. Diritto penale e processo: 1 8 5 ff. Paone, V. 2 0 0 8 . Il reato di omessa bonifica secondo i recenti orientamenti della Cassazione. Ambiente e Sviluppo: 1 1 9 ff. Paonessa, C. 2 0 0 9 . Gli obblighi d i tutela penale. La d iscrezionalità legislativa nella cornice d ei vincoli costituzionali e comunitari. Pisa: Edizioni ETS. Parodi Giusino, M. 1 9 9 0 . I reati d i pericolo tra d ogmatica e politica criminale. Milano: Giuffrè. Patrono, P. 1 9 8 0 . Inquinamento ind ustriale e tutela penale d ell’ambiente. Padova: Cedam. Patrono, P. 1 9 8 9 . Inquinamento idrico da insediamenti produttivi e tutela penale dell’ambiente. Rivista trimestrale d i d iritto penale d ell’economia: 1 0 1 9 ff. 230 LICIA SIRACUSA Patrono, P. 2 0 0 0 . I reati in materia di ambiente. Rivista trimestrale d i d iritto penale d ell’economia: 6 6 9 ff. Patrono, P. 2 0 0 8 . La disciplina penale dell’inquinamento idrico e atmosferico dopo il c.d. Testo Unico Ambientale: profili problematici vecchi e nuovi. Rivista trimestrale d i d iritto penale d ell’economia: 7 0 4 ff Patrono, P. 2 0 1 5 . I nuovi delitti contro l’ambiente: il tradimento di un'attesa riforma. www.lalegislazionepenale.eu, 1 1 gennaio 2 0 1 6 . Pavich, G. 2 0 1 7 . Reati di inquinamento ambientale e disastro ambientale: prime questioni interpretative. Cassazione penale: 4 0 5 ff. Plantamura, V. 2 0 0 7 . Diritto penale e tutela d ell’ambiente. Bari: Cacucci. Prosdocimi, S. 1 9 8 2 . Profili penali d el post-fatto. Milano: Giuffrè. Pulitanò, D. 1 9 6 7 . Illiceità espressa e illiceità speciale. Rivista italiana d i d iritto e proced ura penale: 6 5 ff. Ramacci, L. 2 0 0 6 a. Diritto penale d ell’ambiente. Padova: Cedam. Ramacci, L. 2 0 0 6 b. La nuova d isciplina penale d ei rifiuti. Piacenza: Ipsoa. Ramacci, L. 2 0 1 5 . Prime osservazioni sull'introduzione dei delitti contro l'ambiente nel codice penale e le altre disposizioni della legge 2 2 maggio 2 0 1 5 , n. 6 8 . www.lexambiente.it, 2 9 maggio 2 0 1 5 . Ramacci, L. 2 0 1 7 . Il "nuovo" disastro ambientale. In La legge sugli ecoreati d ue anni d opo. Un d ialogo tra d ottrina e giurisprud enza. Ruga Riva, C. (ed.). Torino: Giappichelli: 3 5 ff. Riccardi, M. 2 0 1 8 . I "disastri ambientali" la Cassazione al crocevia tra clausola di salvaguardia, fenomeno successorio e concorso apparente di norme. Diritto penale contemporaneo, 3 0 ottobre 2 0 1 8 : 3 1 9 ff. Romano, M. 2 0 0 4 . Commentario sistematico d el cod ice penale, vol. I. Milano: Giuffrè. Ruga Riva, C. 2 0 0 0 . I collaboratori di giustizia e la connessa legislazione premiale in Italia e in altri ordinamenti europei. Il crimine organizzato come fenomeno transnazionale, ed. V. Militello, L. Paoli and J. Arnold. Freiburg: MaxPlanck-Institut. Ruga Riva, C. 2 0 0 2 . Il premio per la collaborazione processuale. Milano: Giuffrè. Ruga Riva, C. 2 0 1 1 . Diritto penale d ell’ambiente. Torino: Giappichelli. Ruga Riva, C. 2 0 1 4 . Commento al testo base sui delitti ambientali adottato dalla Commissione Giustizia della Camera. Diritto penale contemporaneo. 2 2 gennaio 2 0 1 4 . Ruga Riva, C. 2 0 1 5 a. Il nuovo delitto di inquinamento ambientale. www.lexambiente.it, 2 3 giugno 2 0 1 5 . Ruga Riva, C. 2 0 1 5 b. I nuovi ecoreati. Torino: Giappichelli. Ruga Riva, C., 2 0 1 5 c. Commento all'art. 4 5 2 bis c.p. In Cod ice penale commentato. ed. Gatta G., Dolcini E. Milano: Ipsoa: 2 1 0 5 ff. Ruga Riva, C., 2 0 1 5 d. Commento all'art. 4 5 2 quater c.p. Cod ice penale commentato. ed. Gatta G., Dolcini E. Milano: Ipsoa: 2 1 1 9 ff. Ruga Riva, C. 2 0 1 6 a. Il delitto di inquinamento ambientale al vaglio della Cassazione: soluzioni e spunti di riflessione. Diritto penale contemporaneo. 2 2 novembre 2 0 1 6 . Ruga Riva, C. 2 0 1 6 b. Il nuovo disastro ambientale: dal legislatore ermetico al legislatore logorroico. www.lexambiente. 1 5 luglio 2 0 1 6 . Siracusa, L. 2 0 0 7 . Tutela penale d ell’ambiente. Bene giurid ico e tecniche d i incriminazione, Milano: Giuffrè. IX. The recent Italian Reform of “Eco-crimes” 231 Siracusa, L. 2 0 0 8 . La competenza penale comunitaria al primo banco di prova: la direttiva europea sulla tutela penale dell’ambiente. Rivista trimestrale d i d iritto penale d ell’economia: 8 6 3 ff. Siracusa, L. 2 0 0 9 . Causalità e colpa nell’esposizione dei lavoratori alle polveri di amianto tra “caos” e “logos”. Rivista trimestrale d i d iritto penale d ell’economia: 9 6 9 ff. Siracusa, L. 2 0 1 2 . Nesso di causalità ed esposizione a “sostanze tossiche” (processi Montefibre 2 0 1 1 ). Nel d iritto: 7 5 7 ff. Siracusa, L. 2 0 1 3 . L’attuazione della direttiva sulla tutela dell’ambiente tramite il diritto penale. Diritto penale contemporaneo. 2 2 febbraio 2 0 1 1 . Siracusa, L. 2 0 1 5 . La legge 2 2 maggio 2 0 1 5 , n. 6 8 sugli “ecodelitti”: una svolta quasi epocale per il diritto penale dell’ambiente. Diritto penale contemporaneo Rivista trimestrale: 1 9 7 ff. Siracusa L. 2 0 1 7 . Disastri. Diritto on line Treccani - Approfond imenti encicloped ici. Spena, A. 2 0 0 9 . Accidentalia delicti, Le circostanze nella struttura del reato. Rivista italiana d i d iritto e proced ura penale: 6 3 9 ff. Surace, M. 2 0 1 0 . La morte del lavoratore per l’esposizione alle polveri di amianto: condizione perché sussista la responsabilità del datore di lavoro. Cassazione penale: 2 1 1 ff Telesca, M. 2 0 1 5 . Osservazioni sulla l. n. 6 8 /1 5 recante "disposizioni in materia di delitti contro l'ambiente": ovvero i chiaroscuri di un'agognata riforma. Diritto penale contemporaneo. 1 7 luglio 2 0 1 5 . Telesca, M. 2 0 1 6 . La tutela penale d ell’ambiente. Profili problematici d ella legge n.6 8 /2 0 1 5 . Torino: Giappichelli. Torre, V. 2 0 1 5 . Art. 4 5 2 - decies. Ravvedimento operoso. Trattato d i d iritto penale. Parte generale e speciale. Riforme 2 0 0 8 -2 0 1 5 . ed. Cadoppi, A., Canestrari, S., Manna, A., Papa, M. Milano: Utet: 1 0 6 7 ff. Vagliasindi, G. M. 2 0 1 0 . La direttiva 2 0 0 8 /9 9 CE e il Trattato di Lisbona: verso un nuovo volto del diritto penale ambientale italiano. Diritto d el commercio internazionale: 4 4 9 ff. Vergine, A. L. 1 9 9 5 . Ambiente, nel diritto penale (tutela dell’). Digesto d elle d iscipline penalistiche, Appendice, vol. IX. Vergine, A. L. 2 0 0 9 a. Il reato di omessa bonifica: due decisioni interrompono un prolungato silenzio. Ambiente e Sviluppo: 9 8 1 ff. Vergine, A. L. 2 0 0 9 b. Nuovi orizzonti del diritto penale ambientale. Ambiente e Sviluppo: 1 0 ff. Vergine, A. L. 2 0 1 4 . La strada dell’inferno è lastricata di buone intenzioni. A proposito del DDL 1 3 4 5 /2 0 1 4 sui delitti ambientali. Rivista giurid ica d ell’ambiente: 4 5 7 ff. Zirulia, S. 2 0 1 2 a. Causalità e amianto: l’eterno “duello” tra i consulenti tecnici delle parti. Corriere d i merito: 2 7 7 ff. Zirulia, S. 2 0 1 2 b. Ancora oscillazioni della giurisprudenza di legittimità sulle “morti da amianto”. Diritto penale contemporaneo. 1 1 ottobre 2 0 1 2 . Zirulia, S. 2 0 1 4 . Processo Eternit: a che punto siamo? Diritto penale contemporaneo. 1 8 ottobre 2 0 1 3 . CHAPTER X CIVIL AND PROCEDURAL PROTECTION OF THE ENVIRONMENT IN BRAZIL Raquel Dias d a Silveira SUMMARY: 1 . Introduction. –2 . The environment in the Brazilian Republic of 1 9 8 8 . –3 . Constitutional competences. –4 . Environment civil protection. –4 .1 . Environmental damage. –4 .2 . The polluter. –4 .3 . Causal link. –4 .4 . Civil liability for environmental damage. –5 . Main means of procedural protection of the environment. –5 .1 . Popular action. –5 .2 . Civil investigation and environmental public civil action. –6 . Conclusions. 1 . Introd uction In Brazil the environment started to receive judicial protection as a cohesive concept only in 1 9 9 1 , when it obtained constitutional status in force of the Constitution of the Brazilian Republic of 1 9 8 8 (Chapter VI, “Environment”, under Title VIII, “The Social Order”). The environment is protected as a ‘human social right’ (Silva 2 0 0 6 , 8 3 5 ). According to Silva, the Social Order corresponds to the body of rights forming the ‘significant core of the established democratic regime’. However, it would only be possible to include science and technology of the environment in the idea of a ‘substantial core’ in a wider concept of social order. Although this concept is very wide, it is still not able to integrate the protection of indigenous people (Silva 2 0 0 6 , 7 5 7 ). This study will focus on judicial protection of the environment, with particular attention to civil liability and to the main means of procedural protection set forth for the restoration of the environmental damage. 2 . The environment in the Brazilian Republic of 1988 Art. 2 2 5 of the Republic Constitution of 1 9 8 8 states: All have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations. 234 RAQUEL DIAS DA SILVEIRA The Constitution highlights the trans-individual nature of the Environmental Subjective Law, which is everyone’s right, but also “expands it to an indeterminate community” (Machado 2 0 1 3 , 1 5 1 ). It completes the so-called ‘new collective rights’ that appeared after WWII, which by having collective ownership correspond to the category of diffused rights. Diffused rights express common values and obligations of mutual respect among all social groups. This means that the environment is not everyone’s right only, but also a right of future generations. Dimoulis and Martins (2 0 0 9 , 1 2 9 ) explain that, although it is a people’s right, the exercise of diffused rights is not always individual, like the classic collective rights, in light of the fact that no one owns a ‘piece’ of nature to exploit. Everyone, at the same time, has the right and the obligation to guard and protect it, so that everyone, future generations included, can benefit from a healthy quality of life. The autonomous treatment of the Environment in Brazil endorsed by the 1 9 8 8 Constituent can be understood from the systematization of principles expressed or implied in the constitutional text, and especially the following principles: ecologically balanced environment (art. 2 2 5 , caput), healthy quality of life (art. 2 2 5 , caput), sustainability (art. 2 2 5 , caput), precaution (art. 2 2 5 , ph. I, IV), preservation (art. 2 2 5 , ph. I, VI), restoration (art. 2 2 5 , ph. III), and obligation of the public authority to intervene (art. 2 2 5 , ph. I). Nevertheless, these principles do not complete with one another within Art. 2 2 5 . The Constitution of 1 9 8 8 preserves the environment in other scattered rules. Therefore, the interpretation must be systematic, especially taking into account Art. 5 , XXIII, LXX, LXXI and LXXIII; 2 0 , I, II, III, IV, V, VI, VII, VIII, IX, X, XI and ph. I and II; 2 1 , IX, XIX, XX, XXIII, “a”, “b”, “c” and XXV; 2 2 , IV, XII, XIV, XXVI and sole paragraph; 2 3 , I, III, IV, VI, VIII, IX and XI; 2 4 , I, VI, VII E VIII; 2 6 ; 3 0 , I, II, VIII and IX; 3 7 , ph. IV; 4 3 , ph. II, IV, and III; 4 9 , XIV e XVI; 9 1 , ph. I, III; 1 0 3 ; 1 2 9 ; III; 1 7 0 , VI, 1 7 4 , ph. III and IV; 1 7 6 and ph. I, II, and IV; 1 7 7 , ph. III; 1 8 2 , ph. I, II, III, and IV; 1 8 6 , II; 2 0 0 , VII E VIII; 2 1 5 ; 2 1 6 , V and ph. I, II, and IV; 2 2 0 , ph. III, II; 2 2 5 ; 2 3 1 , ph. I to VII and 2 3 2 of the Constitution of the Republic; Articles 4 3 and 4 4 of the Transitory Disposition Act (Sirvinkas, 2 0 1 3 , 1 7 1 ). 3 . Constitutional competences The Brazilian Constitution of 1 9 8 8 adopts a trichotomous federalism, implemented through Art. 1 8 , which corresponds to the intangible and immutable core of those rules in force of a constitutional amendment providing that the political and administrative organisation of Brazil comprises the Union, the States, the Federal District and the Municipalities. Two characteristics can be highlighted in Brazilian federalism. The first one is that the Municipalities are political authorities and not mere X. Civil and Proced ural Protection of the Environment in Brazil 235 autarchic bodies simply vested with administrative autonomy. The second one is the memorable concentration of legislative and material competences within the Union, even though there is a lack of political hierarchy among the federated units (Amado 2 0 1 2 , 3 3 ). This is due to the fact that, unlike in the United Stated of America, Brazilian federalism is the outcome of a centripetal process aimed at decentralizing and partitioning the central power. According to the legal competences on environmental matters, every political body has the power to concurrently legislate on the environment. The Union is entitled to establish general rules to be supplemented and completed by the Federal District, which the States and the Municipalities implement according to their regional and local interests (Amado 2 0 1 2 , 3 9 ). Art. 2 4 states that the Union, the States, and the Federal District have the power to legislate on: “VI – forests, hunting, fishing, fauna, preservation of nature, defence of the soil and natural resources, protection of the environment and pollution control; VII –protection of the historic, cultural, artistic, tourist, and landscape heritage; VIII –liability for damages to the environment, to consumers, to assets, and to rights of artistic, aesthetic, historical, and landscape value”. Pursuant to paragraphs I, II, III and IV of the same text, the competence of the Union is limited to setting general rules, even though the supplementary competence of States and Federal Districts is not excluded. In spite of the fact that Art. 2 4 does not refer to a concurrent competence of the Municipalities, Antunes (2 0 1 3 b, 1 1 0 ) warns that it would be senseless to assert that Brazilian Municipalities do not have any legislative competence on environmental matters insomuch as Art. 3 0 of the Constitution provides them with the power to legislate upon matters of social interest; supplement federal and state legislations when pertinent; promote, whenever pertinent, adequate territorial ordaining, by means of planning and control of use, apportionment, and occupation of the urban soil through the so-called Master Plan; promote the protection of the local historic and cultural heritage, with due regard for federal and state legislation and supervision. Indeed, the Supreme Court of Justice in the judgement subsequent to Special Complaint No. 2 9 .2 9 9 /RS,1 I Class, Rapporteur Minister Demócrito Reinaldo, of 1 7 th October 1 9 9 4 , “Ementa: constitucional. meio ambiente. Legislação municipal supletiva. possibilidade. atribuindo, a constituição federal, a competencia comum a união,aos estados e aos municipios para proteger o meio ambiente e combater a poluição em qualquer de suas formas, cabe, aos municipios,legislar supletivamente sobre a proteção ambiental,na esfera do interesse estritamente local. A legislação municipal, contudo, deve se constringir a atender as caracteristicas proprias do territorio em que as questões ambientais, por suas particularidades, não 1 236 RAQUEL DIAS DA SILVEIRA understood that Municipalities have a supplementary competence upon environmental matters of strictly local interest. As an exception, the Union has the exclusive power to legislate on waters, energy, mines, and other mineral resources matters, as provided by Art. 2 2 , ph. IV, XII, and XXVI of the Brazilian Constitution of 1 9 8 8 . The legislative competences exclusively2 accorded to the Union are mainly strategic, and in force of their importance cannot be divided among all federal authorities (i.e., 2 6 States, the Federal District, and about 5 ,5 0 0 Municipalities). Antunes (2 0 1 3 b,1 0 3 ) rightly asserts that the items stated in Art. 2 2 represent a significant part of environmental law. Furthermore, he observes (2 0 1 3 2 ,1 0 7 ) that there is no law in Brazilian legislation defining those general rules. So basically all federal law is considered to be a general rule. Thus the Union often crosses the limits of its competence, leaving little space to States, Federal District, and Municipalities to supplement its laws. There is a centralizing tendency of the Union on the material competences of environmental Law. Pursuant to Art. 2 1 , ph. IX, XIX, XX, XXIII, letters “a”, “b”, “c”, and “d”, and ph. XXV of the Brazilian Constitution of 1 9 8 8 , the Unions can prepare national and regional plans for the ordaining of the territory, and for economic and social development; establish a national system for the management of water resources and define criteria for the concession of the right to their use; establish directives for urban development, including housing and basic sanitation; operate nuclear energy services and facilities of any nature; establish the areas and the terms of gold and diamond mining and stone quarrying. In any case, the Brazilian Constitution showed innovation in establishing –at least theoretically –a cooperative form of federalism. In Art. 2 3 , ph. III, VIII, IX, and XI it establishes that the following responsibilities are of common competence (that is so say administrative competence shared among the Union, the States, the Federal District, contem com o disciplinamento consignado na lei federal ou estadual. a legislação supletiva, como e cediço, não pode ineficacizar os efeitos da lei que pretende suplementar. uma vez autorizada pela união a produção e deferido o registro do produto, perante o ministerio competente, e defeso aos municipios vedar, nos respectivos territorios, o uso e o armazenamento de substancias agrotoxicas, extrapolando o poder de suplementar, em desobediencia a lei federal. A proibição de uso e armazenamento, por decreto e em todo o municipio constitui desafeição a lei federal e ao principio da livre iniciativa, campo em que as limitações administrativas hão de corresponder as justas exigencias do interesse publico que as motiva, sem o aniquilamento das atividades reguladas. Recurso conhecido e improvido. decisão indiscrepante”. 2 Exclusive competence implies that the issue is of sole competence of the Union, which can then delegate it to the States, Federal District, and Municipalities. Exclusive competence is peculiar to a specific entity or body. (Silva 2 0 0 6 , 2 6 3 ). X. Civil and Proced ural Protection of the Environment in Brazil 237 and the Municipalities): protecting documents, works, and other assets of historical, artistic, or cultural value, monuments, remarkable landscapes, and archaeological sites; protecting the environment and fighting pollution in any of its forms; preserving forests, fauna and flora; promoting housing construction programmes and improving housing and basic sanitary conditions; registering, monitoring, and controlling the concession of rights to prospect for and exploit water and mineral resources within their territories. Pursuant to Art. 2 3 , cooperation between the federated entities shall be established by supplementary laws aiming at promoting a balanced development and well-being on a nationwide scale. Twenty-three years after the date of entry into force of the Constitution of 1 9 8 8 , Complementary Law no. 1 4 0 of 8 th December 2 0 1 4 3 was finally promulgated, thus establishing the rules for cooperation between the federated bodies on common administrative competences listed in Art. 2 3 , ph. III, VI, and VII. The main goal of complementary law No. 1 4 0 /2 0 1 1 is to be found in Art. 3 , ph. III: harmonizing policies and administrative actions to avoid overlapping of the federated bodies’ work in order to prevent conflicts of function and achieve efficient administrative implementation. The law limits the administrative actions of the Union (Art. 7 ), of the States (Art. 8 ), and of the Municipalities (Art. 9 ). The Federal District must implement in its territory the administrative actions that are the competence of States and Municipalities. The abovementioned complementary law No. 1 4 0 /2 0 1 1 (Art. 4 ) establishes the following instruments so that cooperation between the political bodies can be possible: I –Public Consortium; II –Conventions, agreements on technical cooperation among entities and bodies of the Public Authority; III –Tripartite National Commission, Tripartite States Commissions, and Bipartite Commission of the Federal District; IV – Public and private funds and other economic instruments; V –Delegation of competences from one federal body to another, under the terms provided for in this Complementary Law; VI –Delegation of power to implement administrative actions from one federal body to another. Di Pietro (2 0 1 3 , 3 4 9 ) shows that the possibility of cooperation or ‘associated management’ between the Union, States, Federal District, and Municipalities explicitly results from the constitutional text (Art. 2 4 1 ) and the formulation provided by Constitutional Amendment No. 19/98. Federal Law No. 1 1 .1 0 7 /2 0 0 5 governs this subject, establishing as instruments for ‘associated management’ the Public Consortium, the Programme contract, and the Cooperation Agreement. Di Pietro (2013, 347) defines it as regulated by federal law no. 8 .6 6 6 /9 3 , Art. 1 1 6 and as a form of agreement between 3 http://www.planalto.gov.br/ccivil_ 0 3 /leis/lcp/Lcp1 4 0 .htm. Accessed 0 2 May 2 0 1 4 . 238 RAQUEL DIAS DA SILVEIRA public authority and public, or private, entities aiming at reaching goals of public interest through mutual collaboration. Di Pietro explains that according to the doctrine a consortium is the consensus of two or more legal persons governed by public law of the same nature and at the same government level, or of bodies of indirect administration for the achievement of common objectives. In altering the institution already legitimised by Brazilian Law (mainly as an agreement between Municipalities for the realization of activities for the common interest), federal law No. 1 1 .1 0 7 /2 0 5 5 regulated the public consortium having legal personality governed by public or private law, if the public law will integrate the indirect administration of all authorities within the consortium. The so-called National Tripartite, States Tripartite, and Federal District Bipartite Commission will be equally created by representatives of the Union, State, Federal District, and Municipalities; Union, States, and Municipalities; Union and Federal District, respectively, aiming at promoting shared and decentralized environmental management among the federated bodies. The most relevant controversy that complementary law No. 1 4 0 /2 0 1 1 seems to have tackled is competence for exercise of environmental police authority. This is mostly explained by environmental control and licensing. The federal system adopted by Brazil creates some circumstances that are not juridically clear. Contradictory approaches are often adopted by the different federal bodies. Moreover, there are also conflicts in the actions of direct administration, environmental control agencies, forestry institutes, and hydrological agencies of the same State, Municipality, or of the Union (Antunes 2 0 1 3 b, 1 0 1 ). It is a matter of administrative actions, where the biggest difficulties for the economical order can be found. 4 . Environment civil protection The fact that development creates a minimum of pollution cannot be forgotten. The impact on the environment must happen in a sustainable way, respecting both the support capabilities of the ecosystems and the pollution standards set forth by the public authority (Amado 2 0 1 2 , 4 4 6 ). Pursuant to Principle 1 3 of the Declaration of Rio de Janeiro, environmental liability is expressed in art. 2 2 5 , ph. III of the Constitution according to which if procedures and activities considered as harmful to the environment are found, the violators shall be subject –whether individuals or legal entities –to criminal and administrative sanctions, without prejudice to the obligation to repair the damage caused. The Constitution of 1 9 8 8 expressively describes civil liabilities for damage caused by those who exploit mineral resources in Art. 2 2 5 , ph. II. Moreover, environmental liability can be more than a criminal act, hence giving rise to administrative, civil, and penal responsibility for the polluter. Therefore, the responsibilities are autonomous and independent, X. Civil and Proced ural Protection of the Environment in Brazil 239 and must be ascertained in a separate and cumulative way, not implying bis in id em in the sanctions against the agent. For the purpose of delimiting the matter only, this study will analyse the civil protection of the environment, starting from the following premises: Civil liability for environmental damage does not only result from unlawful conduct as unlawful actions can cause environmental damage too; The State can cause environmental damage when acting as a direct polluter. It can also reinforce it when failing to control damage. In the latter hypothesis, the State will be considered as an indirect polluter. 4 .1 Environmental d amage According to Servinkas (2 0 1 3 , 2 5 5 ), environmental damage is any harm to the environment caused by a potentially polluting economical activity, resulting from the actions of any persons or from voluntary omission arising from negligence. Federal law No. 6 .9 3 8 /1 9 8 1 4 regulating the National Policy for the Brazilian Environment, works on two concepts: environmental degradation and pollution. The first one is wider than the second one. Art. 3 , ph. II defines environmental degradation as any negative alterations of the environment’s characteristics. Paragraph III of the same law conceives pollution as environmental degradation resulting from those activities that indirectly or directly harm the health, safety, and well-being of the population; create conditions adverse to social and economical activities; negatively influence the biocoenosis; and spill materials in amounts that exceed environmental standards. Amado (2 0 1 2 , 4 4 6 ) shows that pollution can be both licit and illicit. If a person deforests part of the vegetation growing on his/her land with a regular environmental permit, he/she will produce licit pollution, that is to say within the standards tolerated by environmental law and based on a license. Licit pollution removes the administrative or criminal responsibility of the polluter, but not the civil responsibility in light of the fact that it does not entail sanctions but restorations (Amado 2 0 1 2 , 4 4 7 ). 4 .2 The polluter According to Art. III, item IV of the Federal Law no. 6 .9 3 8 /1 9 8 1 , a polluter is any individual or legal entity directly or indirectly responsible for action causing environmental degradation. 4 http://www.planalto.gov.br/ccivil_ 0 3 /leis/l6 9 3 8 .htm. Accessed 0 3 May 2 0 1 4 . 240 RAQUEL DIAS DA SILVEIRA The State can behave as a polluter both through acts (when it directly causes damage) and through omission (when failing to control). For example, in the first case, the State directly exploits the oil sector by means of state-owned enterprises; in the second case, the State issues an irregular environmental license, thus acting against the environmental law (Amado 2 0 1 2 , 4 6 7 ). If on one hand, there is no doubt on the Brazilian doctrine of the objective responsibility of the State for its actions, on the other hand, there is a great contradiction on the nature of State responsibility for omissions. Bandeira De Mello (2 0 1 4 , 1 0 3 1 ) affirms that if damage is a possible consequence of State omission (because the system did not work, was tardy, or worked inefficiently) the theory of subjective responsibility must be applied. If the State did not act, it cannot be considered as the author of the damage. If the State is not the author of the damage, it may be held responsible if its duty was to prevent it. This means that the State only answers for non-execution of its legal duty to prevent harmful action. State responsibility for omission always derives from an illicit behaviour. If the State has no conscious purpose to violate the law (malice) or carelessness, imprudence, or malpractice (negligence), its conduct cannot be defined as illicit. Although this is the inclination of the Supreme Court of Justice5 , a recent precedent6 declared the objective liability of the State for environmental damage, even if it is a case of failure to control (Amado 2 0 1 2 , 4 4 6 ). In order to force the public authority to be cautious and accurate when monitoring, guiding, and governing environmental health –in order to avoid any loss of property or natural resources by the people –the State is jointly liable with the private person or body, in light of its nonfeasance. Furthermore, in reason of its diffused nature, not only is it difficult to identify the victim of the environmental damage, but also it is often difficult to identify the transgressor. Therefore, pursuant to Art. 9 4 2 of the Civil Code of 2 0 0 2 , Brazilian environmental law adopts the principle of passive solidarity: if there is more than one entity causing the damage, all of them will be jointly liable. In the event of restoration of the damage by one of the co-authors, the latter can file a lawsuit against the others according to a basis STJ, REsp 1 0 7 1 7 4 1 /SP, 2 ª Turma, Rel. Min. Herman Benjamin, DJ 1 6 .1 2 .2 0 1 0 . https://ww2.stj.jus.br/revistaeletronica/ita.asp?registro=200801460435&dt_publicacao=1 6 /1 2 /2 0 1 0 . Accessed 0 3 May 2 0 1 4 . 6 STJ, REsp 1 0 7 1 7 4 1 /SP, 2 ª Turma, Rel. Min. Herman Benjamin, DJ 1 6 .1 2 .2 0 1 0 . https://ww2.stj.jus.br/revistaeletronica/ita.asp?registro=200801460435&dt_publicacao=1 6 /1 2 /2 0 1 0 . Accessed 0 3 May 2 0 1 4 . 5 X. Civil and Proced ural Protection of the Environment in Brazil 241 proportional to the damage ascribed to each one7 . The civil lawsuit can be brought against the person directly responsible, the person indirectly responsible, or against both, for the damage caused to the environment (Sirvinkas 2 0 1 3 , 2 5 9 -2 6 0 ). Amado (2012, 448) highlights the tendency in environmental law based on the American ‘deep pocket’ theory, according to which the liability rests upon those having more possibilities to face the environmental damages, since all direct and indirect polluters are jointly liable. Furthermore, it must be noted that the Supreme Court of Justice, in the precedents referring to lawsuits on liability for environmental damage, prohibits any third party from joining the proceedings (Joinder of Codebtors) in light of the principles of efficiency and promptness. Too many people accused in one trial, prolonged discussions on negligence and assessments of the liability of each polluter would certainly delay recovery of the environmental damage. The polluter facing the damage will have to file claims against the co-debtors or against those jointly liable8 . In liability for environmental damage, especially in a claim for redress and if the State is held liable for the damage, the Supreme Court for Justice allows excluding the polluter’s legal personality. On these aspects the following precedent can be found: AgRg No. REsp 1 0 0 1 7 8 0 /PR, Rel. Min. Teori Albino Zavascki, DJ 0 4 .1 0 .2 0 1 1 9 . In the event of a case for restoration of damage among co-debtors, the liability is subjective. 8 “Ementa: processual civil e ambiental. Agravo regimental. Ofensa ao art. 5 3 5 do cpc inocorrência. Dano ao meio ambiente. Responsabilidade objetiva. Denunciação à lide. Impossibilidade. Relação entre pretensos denunciante e denunciado. Responsabilidade subjetiva. Princípios da economia e celeridade processuais. 1 . Em primeiro lugar, não existe a alegada ofensa ao art. 5 3 5 do CPC. A contradição que autoriza o manejo dos aclaratórios é aquela que ocorre entre a fundamentação e o dispositivo, e não a interna à fundamentação. A obscuridade apontada confunde-se com o inconformismo da parte acerca do julgamento da controvérsia de fundo proferido pelo Tribunal, situação não enquadrada entre os vícios do art. 5 3 5 do CPC. 2 . Em ”.acific lugar, ”.acific o entendimento desta Corte Superior a respeito da impossibilidade de denunciação à lide quando a relação processual entre o autor e o denunciante é fundada em causa de pedir diversa da relação passível de instauração entre o denunciante e o denunciado, à luz dos princípios da economia e celeridade processuais. Precedentes. 3 . Na espécie, a responsabilidade por danos ao meio ambiente é objetiva e a responsabilidade existente entre os pretensos denunciante e denunciado é do tipo subjetiva, razão pela qual inviável a incidência do art. 7 0 , inc. III, do CPC. 4 . Agravo regimental não provido. STJ, AgRg no Ag 1 2 1 3 4 5 8 / MG, 2 ª Turma, Rel. Min. Mauro Campbell Marques, DJ. Accessed 3 0 September 2 0 1 0 . https://ww2 . stj.jus.br/revistaeletronica/ita.asp?registro=2 0 0 9 0 1 6 0 8 1 8 0 &dt_ publicacao=3 0 /0 9 /2 0 1 0 . Accessed 0 3 May 2 0 1 4 . 9 https://ww2 .stj.jus.br/revistaeletronica/ita.asp?registro=2 0 0 7 0 2 4 7 6 5 3 4 &dt_ publi cacao=0 4 /1 0 /2 0 1 1 . Accessed 0 3 May 2 0 1 4 . 7 242 RAQUEL DIAS DA SILVEIRA 4 .3 Causal link It is hard to establish in a specific case the causal link between polluting behaviour and environmental damage. Environmental damage often arises years after the event harming the environment, through cumulative effects of the emissions from different polluting sources (the so-called synergistic effect of environmental damage) (Amado 2 0 1 2 , 4 6 6 -4 6 7 ). In light of this synergistic aspect, environmental damage can arise from the behaviour of countless polluters during decades, and even centuries. Therefore, in order to assess the causal link, one must conjugate different theories. The direct polluter’s behaviour can be analysed according to the Theory of Direct and Immediate Damages, whereas the behaviour of the indirect polluter (for example the State) must be explained according to the Theory of the Equivalence of Causal Conditions, limited by the Theory of Objective Imputation (Amado 2 0 1 2 , 4 5 8 ). Environmental Law, being a diffused right and following the trend recognized by consumers’ rights law, according to the Supreme Court of Justice precedents allowed the inversion of the burden of proof according to the public interest, the technical and financial weakness of the author, and the complexity of proofs. This can be deduced from the recent Judgement of the IV Class, AgRg No. REsp 1412664/SP, Minister Relateur Raul Araújo, DJ 1 1 .0 3 2 0 1 4 . 4 .4 Civil liability for environmental d amage The Integrated Risk Theory is accepted in order to validate civil responsibility for environmental damage (including that caused by a direct polluter). This means that the causal link is not affected by thirdparty actions, unforeseeable circumstances, or force majeure. For example, if an invader or a former owner has deforested the legal reserve of a farm building, and the current owner has filed a claim or a citizen lawsuit, the theory of a third-party action will not be granted as a cause excluding liability. The current owner will be forced to reforest the area and, at most, identify the direct polluter and file a claim for redress. This can be explained by the fact that environmental damage is propter rem, the owner being therefore forced to repair it, independently of having caused it or not (Amado 2 0 1 2 , 4 6 1 -4 6 2 ). This provision was integrated in the Forest Code, federal law No. 1 2 .6 5 1 /2 0 1 2 , Art. 2 , ph. II, which asserts that in the event of domain or possession transfer of rural estate property, the obligations deriving from the law are real and transferable to a successor of any kind. This precondition has been fully adopted by the new Forest Code (federal law No. 1 2 6 5 1 /2 0 1 2 , Art. 2 , ph. 1 ), which states that in the event of transfer of the domain the obligations ordered by the law are real and transferable to any successors. X. Civil and Proced ural Protection of the Environment in Brazil 243 In many cases, the causal connection can be based on mere property or possession of an environmentally damaged good. The obligation to compensate will be excluded if the entrepreneur can prove that the environmental damage did not happen, or that it was neither directly nor indirectly affected by his/her activities (Amado 2 0 1 2 , 4 6 3 ). In the environment, not all protected legal assets can be restored; therefore, the law can sometimes fix an exact value for them as compensation for damages. When restoration (or reconstruction) of the environment is not possible, there is the need to request environmental compensation, that is to say pecuniary compensation. However, it is difficult to assess the value of the environmental or common goods (Amado 2 0 1 2 , 2 5 6 ). Although this issue has been widely discussed, a criterion to quantify the environmental damage and the way it must be restored is yet to be found. The first hypothesis to take into account is restoration of the environment, re-establishing its status quo ante, either by means of human intervention, or through natural restoration, even if this will not always be possible (Antines 2 0 1 5 , 5 4 3 ). As a financial criterion, the Brazilian legal system provides a provision (especially in federal law No. 9 .9 8 5 /2 0 0 0 - National System of Units of Conservation Law10 ) allowing another area to compensate a damaged one. Besides the material damages, victims can also seek non-material compensations. Recent events that have damaged the environment have led to the construction of jurisprudence acknowledging environmental non-material damage. In this respect, the following judgements can be found: AgRg No. AREsp 4 3 0 8 5 0 /SP, 2 nd Class, Rel. Min. Herman Benjamin, DJ 0 7 .0 3 .2 0 1 4 1 1 ; AgRg No. AREsp 1 3 1 1 1 6 / PR, 3 rd Class, Rel. Min. Paulo de Tarson Sanseverino, DJ 08.11.2013 12 ; AgRg No. AREsp 2 0 1 3 5 0 / PR, 4 th Class, Rel. Min. Marco Buzzi, DJ 0 8 .1 0 .2 0 1 3 1 3 . In the proceedings of REsp 1 2 6 9 4 9 4 /MG, 2 nd Class, Rel. Min. Eliana Calmon, DJ 0 1 .1 0 .2 0 1 3 1 4 , the Supreme Court of Justice acknowledged common environmental non-material damage as dispensed from the obligation to demonstrate pain, repugnance, and indignation of the community, as instead happens for individual damage. http://www.planalto.gov.br/ccivil_ 0 3 /leis/l9 9 8 5 .htm. Accessed 0 3 May 2 0 1 4 . https://ww2 .stj.jus.br/revistaeletronica/ita.asp?registro=2 0 1 3 0 3 7 1 0 8 1 3 &dt_ publ ica cao=0 7 /0 3 /2 0 1 4 . Accessed 0 4 May 2 0 1 4 . 12 https://ww2 .stj.jus.br/revistaeletronica/ita.asp?registro=2 0 1 2 0 0 3 6 3 8 4 4 &dt_ publi cacao=0 8 /1 1 /2 0 1 3 . Accessed 0 4 May 2 0 1 4 . 13 https://ww2 .stj.jus.br/revistaeletronica/ita.asp?registro=2 0 1 2 0 1 4 3 3 5 4 1 &dt_ public acao=0 8 /1 0 /2 0 1 3 . Accessed 0 4 May 2 0 1 4 . 14 https://ww2 .stj.jus.br/revistaeletronica/ita.asp?registro=2 0 1 1 0 1 2 4 0 1 1 9 &dt_ public acao=0 1 /1 0 /2 0 1 3 . Accessed 0 4 May 2 0 1 4 . 10 11 244 RAQUEL DIAS DA SILVEIRA By quoting the theory of Medeiros Neto (2 0 0 7 , 1 3 6 )1 5 , the Court acknowledges the possibility to assess the common non-material damage, stating that: Non-material damage must be investigated according to the characteristic of diffused and common interest, and as far as its characteristics are concerned should become detached from the individuals contributing to a specific community, specific or unspecified group of people whilst not forgetting that it is the merging of individual values that give uniqueness to the common value. Damage not relating to property rights rests upon the individual rights of the group or of the community as a mass reality, increasingly requiring juridical solutions for its protection. It is clear that a community can be offended in its honour, dignity, good reputation, history, customs, tradition, and in its right to have an environment that is healthy both for itself and its heirs. This does not mean that the whole community has to perceive pain, loathing and indignation, as if it were a sole individual. This would only derive from the feeling of belonging to a specific group or community, thus relating personal individuality to the idea of the common1 6 . Antunes (2013 a, 457) for good reasons states that non-material damage, like any other damage, cannot be presumed. 5 . Main means of proced ural protection of the environment According to Principle 1 0 of the Declaration of Rio 1 9 2 2 , the recourse to Judiciary for defence of the environment can take place in different ways: proceedings for interim relief through a collective security-mandate; proceedings for interim relief; ordinary proceedings; precautionary procedures; execution proceedings, among the others. Given the wide scope of the topic, the present work will focus only on popular action and on environmental public civil action. According to the author, the requirements of non-material collective damage (in order to obtain the actual compensation) are: “(1 ) the anti-juridical behaviour of the polluter (action or omission), both natural and legal persons; (2 ) offences pertaining grounding juridical interests, non-pecuniary, held by a given group (community, group, category, or class of persons); (3 ) intolerability of the illicit, in reason of the shown facts and their social impact; (4 ) the causal link between the behaviour and the damage violating the collective interest (latu sensu)”. 16 https://ww2 .stj.jus.br/revistaeletronica/Abre_ Documento.asp?sLink=ATC&sSeq= 3 0 4 4 2 7 4 0 &sReg=2 0 1 1 0 1 2 4 0 1 1 9 &sData=2 0 1 3 1 0 0 1 &sTipo=5 1 &formato=PDF. Accessed 0 4 May 2 0 1 4 . 15 X. Civil and Proced ural Protection of the Environment in Brazil 245 5 .1 Popular action Popular Action was first provided for in the Imperial Constitution of 1 8 2 4 under Art. 1 2 7 , which established that in the event of corruption, subornation, embezzlement, and extortion a popular action can be filed by anyone in the community. Over time, popular action was never used as intended, because – according to Federal Law No. 4 .7 1 7 /1 9 6 5 1 7 –the losing party bears the costs and the final preparation of the proceedings. The Constitution of 1 9 8 8 gives a new shape to popular action by legitimising any citizen to annul the act injurious to the public patrimony, administrative morality, environment, historical and cultural heritage; except in the case of proven bad faith, the plaintiff is exempt from court costs and from the burden of paying all fees and costs (art. 5 , LXXIII). In spite of Art. 1 , ph. III, federal law No. 4 .7 1 7 /6 5 (requiring as proof of citizenship a document of the electoral mandate in order to have standing in filing a popular action), the same author upholds that it is not hard to understand that all inhabitants of the country, both Brazilians and foreigners, are entitled to file an environmental popular action. In this respect, infra-constitutional law cannot be applied because it was not accepted by the Constitution of 1 9 8 8 . Hence, being a citizen does not simply mean being a voter or having full civic rights, but entails the power to speak before the commissions of the National Council, or to integrate public bodies (such as the Council of the Republic), for which there is no obligation to present proof of the right to vote. Citizenship is participatory action in favour of public interests. The action can be brought against legal persons governed by civil law, private individuals, authorities, agents having authorized, approver, ratified, or implemented the challenged act as well as against those that failed to act and caused the damage (Art. 6 ). The action will follow an ordinary procedure (Art. 7 ). The Public Prosecutor must be present at all stages, and is entitled to provide evidence and to call for civil and criminal responsibility towards the damagers (Art. 6 , ph. IV). Furthermore, any citizen can take part in a popular action (Art. 6 , ph. IV). 17 http://www.planalto.gov.br/ccivil_ 0 3 /leis/l4 7 1 7 .htm. Accessed 0 4 May 2 0 1 4 . 246 RAQUEL DIAS DA SILVEIRA 5 .2 Civil investigation and environmental public civil action Pursuant to Art 1 2 9 , ph. III, of the Constitution of 1 9 8 8 , among the functions of the Public Prosecutor there is the power to institute civil investigations and public civil actions to protect the public and social heritage, the environment, and other diffuse and collective interests. The level of institutional organisation of the Public Prosecutor in Brazil has no equals in the world (de Bessa 2 0 1 3 ,1 2 4 4 ) in force of the total independence and autonomy granted by the Constitution of 1 9 8 8 (Clève 2014, 244-245). Surely, this is due to the premature level of Brazilian citizenship, and its dependence on the democratic institutions of the Country (Machado 2 0 1 3 , 4 3 6 )1 8 . The Public Prosecutor, having the exclusive entitlement to start a civil investigation and aiming at controlling the event of crimes attacking diffusive and collective interests, has the power to request proof and information from public entities and individuals (the challenge or delay being considered a crime, except where there is a legal seal). At the end of the aforementioned administrative proceeding (investigation), if the Public Prosecutor decides to quash it, he/she will have to provide grounds for his/her decision, and remit the case to the Supreme Council of Public Prosecutor within three days; failure to do so will be considered a grave lacuna (Art, 8 , ph. 1 , LACP). In the hypothesis that the Public Prosecutor is not a party in the public civil action, he/she will then necessarily act as the controller of the Law faced with the indubitable presence of a public interest (Amado 2 0 1 2 , 4 6 5 ). In the case of abandonment or unfounded waiver by the actor, the Public Prosecutor will take an active role in the proceedings. It is reasonable that the rule of Art. 5 , ph. I and III, is relativized so that the Public Prosecutor can evaluate whether the public civil action is irregular in a particular case (Amado 2 0 1 2 , 4 6 6 ). Like the Union, States, and Municipalities, the Public Prosecutor can apply the Terms of Adjustment of Conduct –TAC (Art. 5 , ph. VI, LACP) so that the polluters can adapt themselves to the terms of the Law. The author explains that in order to understand the institution of the Public Prosecutor it must be analysed in a way different from many other countries. The level of autonomy reached by the Public Prosecutor in Brazilian constitutional history is due to three elements: 1 ) the system of appointment and revocation of the General Public Prosecutor’s charge (appointed by the President of the Republic among members older than 3 5 , after approval of his/her name by the absolute majority of the Federal Senate for a period of two years); renewal is admitted (the removal of the Public Prosecutor by the President of the Republic is preceded by a pronouncement of the absolute majority of the Senate); 2 ) the system of rights and duties of Public Prosecutors, who are appointed for life (they only lose their position in reason of a judicial sentence), prohibition of removal and irreducibility of salaries; 3 ) administrative, functional, and budget autonomy. 18 X. Civil and Proced ural Protection of the Environment in Brazil 247 The Terms of Adjustment of Conduct imply implementing obligations. Nevertheless, they do not provide their content, and can be enforced out of court (Amado 2 0 1 2 , 4 6 6 ). According to these Terms, anyone who causes damage to the environment is under the obligation to stop the detrimental conduct or remedy the damage. This instrument does not require the presence of witnesses or a lawyer. When the TAC is implemented within a civil investigation, there is no need to recur to justice and homologate it. Judicial homologation is only needed if the agreement takes place within a public civil action. Once the TAC is formalised, the Public Prosecutor must follow its enforcement. The civil investigation will then be dismissed, if the entity having filed the proceedings formalizes the implementation by providing adequate certification in the documentation1 9 . Any individual or legal person governed by public or private law directly or indirectly responsible for the behaviour damaging the environment can act as a passive party of the public civic action, pursuant to Art. 3 , item IV, Federal Law No. 6 .9 3 8 /9 1 . The competent Court to rule on the issue is the one where the local damage is to be found, pursuant to Art. 2 of the Law of Public Civil Action (Federal Law No. 7 .3 4 7 /1 9 8 5 ). In force of Art. 1 9 , Federal Law No. 7 .3 4 7 /1 9 8 5 , which contemplates a subsidiary application of the Civil Procedure Code, it is possible to grant early protection in a public civic action. Art. 2 3 7 of the Civil Procedure Code establishes early protection too, which authorises the judge receiving an ex parte application to partially or totally anticipate the effects of the protection requested in the main application, provided that the judge states in a clear and precise way the grounding reasons for this firm belief. Furthermore, there is the need for unequivocal proof, verisimilitude of the allegation, as well as one of the following: I –well-founded fear of damage that is irreparable or difficult to restore; or II –the abuse of the right of defence or the evident purpose to omit of the defendant. Early protection is always recommended in environmental matters (when there are the requisites to grant it) in order to avoid or minimize the damage and its effects. Under Art. 3 of the LACP, the person or body requesting a judgement through a public civic action can apply for a pecuniary penalty or the fulfilment of the obligation to do or not to do something. Recent precedents of the Supreme Court of Justice admit joinder of application, thus entailing a non-literal interpretation of the conjunction ‘or’, which in this case does not have an exclusionary value. For the sake http://www.mpsp.mp.br/portal/page/portal/noticias/publicacao_ noticias/2 0 1 2 /de zembro_2012/Conselho%20Superior%20altera%20S%C3%BAmulas%20de%20Entend imento.pdf. Accessed 0 4 May 2 0 1 4 . 19 248 RAQUEL DIAS DA SILVEIRA of clarity, this is shown in judgement AgRg nos EDcl No. Ag 1 1 5 6 4 8 6 /PR, 1 st Class, Rel. Min. Arnaldo Esteves de Lima, DJ 2 7 .0 4 .2 0 1 1 2 0 . The obligation to restore intangible environmental damage is perennial and is not subjected to any limitation period. Only pending material on environmental damage will be subjected to a 5 -year limitation period, as ruled by Art. 2 1 , federal law No. 4 .7 1 7 /6 5 , and according to Judgement REsp 1 3 6 5 1 6 0 /RJ, 2 nd Class, Rel. Min. Eliana Calmon, DJ 2 4 .1 0 .2 0 1 3 2 1 of the Supreme Court. 6 . Conclusions Environmental law has a double nature: a negative one, when establishing abstention from harmful behaviours of the State and private individuals; and a positive one, when requiring implementation of the obligations deriving from the Law by the State. On these aspects, the Constitution of 1 9 8 8 expressly fixed the principles of prevention, for example by demanding a prior study on the environmental impact before the implementation of potentially polluting or degrading work and activity (Art. 2 2 5 , IV). Furthermore, it established the duty of caution of the State, which has to promote environmental education as well as public awareness for the defence of the environment (Art. 2 2 5 , VI). Removing pollution or restoring the environment to its prior status is usually unlikely or impossible. Furthermore, it is more expensive to remedy damage than to prevent it. Moreover, when referring to the costs of the lawsuit, it must be added that forcing the polluter to compensate for the environmental damage will most likely entail litigation. The financial criteria on the restoration of environmental damage, whether material or non-material, will always be debatable and insufficient. For this reason, the mechanisms of prevention should be preferred, so that the procedural law can be of service to the substantial law. The greatest challenge to legal protection of the environment is risk management. One of the currently emerging alternatives for restoration of environmental damages is environmental insurance: an insurance contract for entrepreneurial activities causing potential detriment to the environment aiming at diminishing the risk of environmental damage. https://ww2.stj.jus.br/revistaeletronica/ita.asp?registro=200900266517&dt_publica cao=2 7 /0 4 /2 0 1 1 . Accessed 0 4 May 2 0 1 4 . 21 https://ww2.stj.jus.br/revistaeletronica/ita.asp?registro=201300260621&dt_publica cao=2 4 /1 0 /2 0 1 3 . Accessed 0 4 May 2 0 1 4 . 20 X. Civil and Proced ural Protection of the Environment in Brazil 249 The National Congress is currently discussing draft Law No. 2 3 1 3 /2 0 0 3 2 2 , which aims at making environmental insurance mandatory both for individuals and legal entities performing economic activities potentially causing environmental decay in urban and rural areas. Technically no insurance should be mandatory. Nevertheless, in light of great obstacles, the ability of the direct polluter to pay and constant restoration of damage caused by society to the environment2 3 , an environmental insurance is probably the only feasible alternative (especially when the damage is larger). Mandatory insurance would not only ensure financial compensation for the environmental damage, but would also ensure that the big insurance companies act as allies of the public interest in constantly monitoring environmental catastrophes. The only problem is that this project does not establish payment of an insurance premium according to the damage caused by gradual pollution, as currently happens in France, the Netherlands and Italy pursuant to Directive No. 2 0 0 4 /3 4 /CE of the European Parliament and of the Council2 4 . In Brazil, insurance coverage just barely includes the damage caused by accidental pollution. Nevertheless, the provision expressed in Art. 1 3 of the LACP (Federal Law No. 4 .3 4 7 /1 9 8 5 ) should be applauded as it establishes that those asking for reimbursement for environmental damages have the right to obtain compensation from federal and national funds. The Public Prosecutor and representatives of civil society will necessarily take part in the relevant legal action. Federal Law No. 9 .0 0 8 /1 9 9 5 created within the Ministry of Justice a Federal Administration Board for the Defence of Diffused Rights Fund (CFDD). The main purpose of it is to “remedy the damage caused to the environment, the consumer, the goods and rights with an artistic, aesthetic, historical, touristic, landscape value in force of the violation of the economical order and other common diffused interest. The amounts of the administrative fees and legal punishments resulting from any environmental damages are collected and administrated by this Fund. The problem is that Brazilian Law, because of the synergic character of environmental damage, the uncertainty of its author (Machado 2 0 1 3 , 4 2 5 ), as well as the need to coordinate preventive and precautionary http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=1 3 8 2 5 7 . Accessed 0 3 May 2 0 1 4 . 23 In the end, the community pays for the damage twice: one for being the holder of the damaged environment, and another one for having to undergo the State’s responsibility when sentenced for being an indirect polluter. 24 http://eur-lex.europa.eu/legal-content/PT/ALL/;jsessionid=BH5 STl2 TLZCF6 F2 421xGXzLq2xdNwVFGbnXQnhvm5nLPgcLhnBJW!857347347?uri=CELEX:32004L0 0 3 5 . Accessed 3 May 2 0 1 4 . 22 250 RAQUEL DIAS DA SILVEIRA policies, would have been more suitable for a State with a continental dimension –in the event that a sole fund for Unions and States had been created. The Law could have been more precise on the possible obligation of the State where expressly provided for, linking the flow of these funds to public policies aiming at preventing and remedying damage. It is imperative that the different laws find judicial solutions in order to allow the substantial law to effectively protect the environment so that the principles of prevention and remedying do not become mere rhetoric. Bibliography Amado, F. 2 0 1 2 . Direito ambiental esquematizad o. São Paulo: Método. Antunes, Paulo de Bessa. 2 0 1 3 a. Comentários ao novo cód igo florestal. São Paulo: Atlas. Antunes, Paulo de Bessa. 2 0 1 3 a. Direito ambiental. 1 5 th ed. São Paulo: Atlas. Bandeira De Mello, A. and Antônio Celso (eds.). 1 9 9 7 . Discriminação constitucional d e competências legislativas: A competência municipal. Direito ad ministrativo e constitucional. Estud os em homenagem a Gerald o Ataliba 2. São Paulo: Malheiros. Bandeira De Mello, A. and A. Celso. 2 0 1 4 . Curso d e d ireito ad ministrativo. 3 1 st ed. São Paulo: Malheiros. Carvalho Filho, J. dos Santos. 2 0 1 3 . Manual d e d ireito ad ministrativo. 2 6 th ed. São Paulo: Atlas, Clève, C. M. 2 0 1 4 . Considerações sobre o Ministério Público. Regime constitucional e poder de investigação em matéria criminal. In Temas d e d ireito constitucional. Belo Horizonte: Fórum. Dimoulis, D. and L. Martins. 2 0 0 9 . Definição e características dos direitos fundamentais. In Direitos fund amentais e Estad o Constitucional. Estud os em homenagem a J.J Gomes Canotilho. São Paulo: Revista dos Tribunais,. Di Pietro, M. S. Z. 2 0 1 3 . Direito ad ministrativo. 2 6 th ed. São Paulo: Atlas Justen Filho, M. 2 0 1 0 . Curso d e d ireito ad ministrativo. 6 th ed. Belo Horizonte: Fórum. Lenza, P. 2 0 1 1 . Direito constitucional esquematizad o. 1 5 th ed. São Paulo: Saraiva. Machado, P. A. L. 2 0 1 3 . Direito ambiental brasileiro. 2 1 st ed. São Paulo: Malheiros. Medeiros Neto, X. Tiago de. 2 0 0 7 . Dano moral coletivo. 2 nd ed. São Paulo: LTr. Milaré, É. and P. A. Leme Machado (eds.). 2 0 1 3 . Novo cód igo florestal. São Paulo: Revista dos Tribunais Silva, J. A. da. 2 0 0 6 . Comentário contextual à Constituição d e 1988. 2 nd ed. São Paulo: Malheiros. Sirvinkas, L. P. 2 0 1 3 . Manual d e d ireito ambiental. 1 3 th ed. São Paulo: Saraiva. Souza, J. C. 2 0 0 9 . A relação do homem com o meio ambiente: o que dizem as leis e as propostas de educação para o meio ambiente. Revista Brasileira d e Direito Constitucional - RBDC, 1 3 -Jan./Jun.: 1 1 8 -1 3 6 . C H A P T E R XI ENVIRONMENTAL LICENSING AS AN INSTRUMENT OF THE BRAZILIAN ENVIRONMENTAL RIGHTS ACT: AN ANALYSIS OF THE SETBACKS OF THE CONSTITUTIONAL AMENDMENT, PROPOSAL 6 5 /2 0 1 2 , IN BRAZIL, AND THE SPANISH LEGISLATION Angela Cassia Costald ello Karin Kässmayer SUMMARY: 1 . Introduction. –2 . Constitutional amendment proposal 6 5 , 2 0 1 2 : violation of the principle of non-regression and of the fundamental right to the environment in Brazilian law. –3 . The material inconsistencies of PEC 6 5 , 2 0 1 2 , and the constitutional commandments in environmental matters. –4 . The treatment of environmental licensing and research institutes in the Spanish legal system. –5 . Conclusions. 1 . Introd uction Environmental licensing is one of the essential instruments for implementation of the National Environmental Act of Brazil, Law no. 6 .9 3 8 , dated 1 9 8 1 , concerning risk management and control of potentially polluting activities by public authorities. However, there is a strong tendency and pressure for the process of environmental licensing to become less rigid and less protective, especially in the National Congress of Brazil (which has generated controversy). Environmental licensing is one of the manifestations of administrative policing of private property and the economic freedom of individuals and is a subject of constant concern and dissent in government (legislative and executive) and by individuals and companies as it interferes with various activities that cause risks to the environment1 . Current news published on environmental licensing in the newspaper Folha de S.Paulo, 1 2 /0 7 /2 0 1 6 , available at: <http://www1 .folha.uol.com.br/poder/2 0 1 6 /0 7 /1 7 9 0 9 4 0 -temer garante-retomar-demarcacoes-indigenas-e-licenciamento-ambiental.shtml>. O Globo newspaper, on 1 2 /0 7 /2 0 1 6 , available at<http://extra.globo.com/noticias/brasil/ temer-defende-mudanca-em-regras-de-venda-de-terra-estrangeiros-de-licenciamentoambiental-1 9 6 9 4 6 8 1 .html>. 1 252 ANGELA CASSIA COSTALDELLO Recently, the Constitutional Amendment Proposal (PEC, according to Brazilian Law) no. 6 5 /2 0 1 2 , which “adds paragraph 7 to article 2 2 5 of the Constitution, to ensure the continuity of public constructions after obtainment of the environmental license”, was adopted by the Commission of Constitution, Justice and Citizenship (CCJ, in Portuguese) of the Federal Senate, and forwarded to the plenary session of the House. Then it returned to the CCJ because there was acceptance of an application for that status in conjunction with the Constitutional Amendment Proposal, PEC no. 1 5 3 , 2 0 1 5 2 . The Constitutional Amendment Proposal no. 6 5 /2 0 1 2 had the following original wording: Article 1 . Art. 2 2 5 of the Constitution takes effect plus the following paragraph 7 . Paragraph 7 . The presentation of the Study and Environmental Impact Report (EIA) authorizes the execution of the construction, which may not be suspended or canceled for the same reasons and not because of a supervening fact (regulatory norm). On 2 7 April 2 0 1 6 , the date of the first decision by the commission (CCJ), the Constitutional Amendment Proposal no. 6 5 , 2 0 1 2 , aroused numerous criticisms and had national repercussions. There was a protest by the Federal Public Prosecution Office, through Technical Note of the Inter- chamber Working Group dated 3 May 2 0 1 6 , with robust argumentation for its unconstitutionality. The pronouncement of the Federal Public Prosecution Office in the technical note dealt with aspects of constitutionality of the proposal and recommended i) the necessary judicial control of the constitutionality of the proposal; (ii) avoidance of offense to the fixed clauses of the Constitution of 1988 that cannot be modified, in particular the separation of powers and the fundamental rights and guarantees; and (iii) the right to an ecologically balanced environment as a human right, based on the principle of solidarity. It also stated that iv) it undermines the technical-legal basis on which the due environmental licensing process is based, and the EIA does not replace environmental licenses; v) it violates the principles of public participation, information and the precautionary principle; and (vi) it offends the postulate of the separation of powers and the principle of access to justice or jurisdiction, expressed in article 5 , XXXV, of the Constitution. Following the same premise, an NGO called “The Right to a Green Planet” made a memorandum for the abrogation of Constitutional Amendment no. 6 5 of 2 0 1 2 3 . In the latter, the unconstitutionality is based on flagrant relativization of environmental licensing and the EIA, prerog- Changes in art. 2 2 5 of the Federal Constitution include, among the obligations of public power, the promotion of practices and the adoption of sustainability criteria in their plans, programs, projects, and work processes. 3 Available at<http://www.planetaverde.org/noticia/instituto/2 9 0 4 /planeta-verdelanca-carta-de-repudio-a-pec6 5 2 0 1 2 >. Accessed 1 6 May 2 0 1 6 . 2 XI. Environmental Licensing as an Instrument of the Brazilian... 253 atives of the environmental agencies in its activities of environmental control. The proposal, according to the memorandum, “Directly damages the public administration and public morality”, and degrades the fixed clause contained in the core of art. 2 2 5 of the Constitution of the Republic of 1 9 8 8 . It is also said to violate the principle of non-regression, “because it strikes the bare minimum of protection that covers the proactive, precautionary and prudent management of risks and environmental impacts”. It further offends the right to access to justice, denying the principle of due process of law. It is important to emphasize that the Constitutional Amendment Proposal aims to authorize the execution of construction, disrespecting the full procedure for environmental licensing. After the news of the adoption of the opinion by the CCJ in the Federal Senate, NGOs, the public prosecutor and the community in general, emphatically rejected the proposal, which ultimately resulted in a new decision by the commission and the rejection of the amendment proposal. Despite the presentation of the new decision by the commission, the controversies about the procedure of environmental licensing in Brazil have rekindled in recent months, being at the heart of countless legislative bills seeking to regulate the matter, even deconstructing its main purpose, which is environmental protection4 . Based on the study of Constitutional Amendment Proposal 6 5 , 2 0 1 2 , and its approval by the CCJ, in the Senate, the theme of environmental licensing gains importance and deserves a more detailed analysis, which is why this essential environmental instrument will be analyzed under the perspective of the Brazilian and the Spanish legislation. 2 . Constitutional amend ment proposal no. 65, 2012: violation of the principle of non-regression and the fund amental right to the environment in Brazilian law Initially, it is necessary to clarify that, although the full title of the Constitutional Amendment Proposal no. 6 5 /2 0 1 2 says that it “adds paragraph 7 to article 2 2 5 of the Constitution, to ensure the continuity of public construction after obtainment of the environmental license”, the content of the article is controversial in relation to the full title, seeing that: “The presentation of the Study and Environmental Impact Report (EIA/EIR) authorizes the execution of the construction, which may not be suspended or canceled for the same reasons and not because of a supervening fact”. The first statement that emerges from the text is that the proposal aims to ensure the execution of construction by the presentation of a pre- 4 See, for example, the draft bill in the Senate (PLS) no. 6 5 4 of 2 0 1 5 . 254 ANGELA CASSIA COSTALDELLO vious EIA. This provision collides with the provisions of the preamble and item no. IV of paragraph 1 of article 2 2 5 of the Constitution of the Republic of 1 9 8 8 , which establishes as a condition for execution of construction mere presentation of the EIA, regardless of any consideration by the competent agencies. Article 2 2 5 of the Constitution establishes the right of everyone to an ecologically balanced environment, considered as a common good essential to a healthy and good-quality life. This right, although not inserted in the list in article 5 of the Constitution, is enshrined as a fundamental right by the jurisprudence of the Supreme Court and it is part of the list of rights protected by the Constitution of 1 9 8 8 . The Constitution, in section IV of paragraph 1 of article 2 2 5 , provides that the EIA will be required for constructions or activities that cause significant environmental degradation. The EIA, in turn, should not be confused with licensing, because it is considered to be only one of the instruments of environmental impact assessment which may be required in the process of environmental licensing (Farias, 2 0 0 7 ). Law 6 9 3 8 , dated August 3 1 , 1 9 8 1 , which created the National Policy on the Environment (PNMA), in Brazil, established as an instrument of this policy evaluation of environmental impacts and the licensing and reviewing of effectively or potentially polluting activities (Sections III and IV of the article 9 ). Both the EIA, as one of the instruments of environmental impact assessment, and the licensing instrument of environmental planning, are regulated by Resolutions 1 , dated 2 3 January 1 9 8 6 , and 2 3 7 , of 1 9 December 1 9 9 7 , respectively. Further, art. 1 0 of the PNMA determines the performance of the work for granting of an environmental license. The EIA, in turn, is submitted to verification by the environmental agency, as required in the licensing of activities with significant polluting potential. The activity must be prepared and presented before licensing, to inform and guide public managers in decision-making, as required by sections I and II of article 1 0 of Conama 2 3 7 of 1 9 9 7 . This study aims to indicate not only the risks and negative environmental impacts to be prevented, corrected or minimized, as well as to present alternative locations and technologies to the enterprise, or, if necessary –in the case of high social and environmental costs involved –to recommend non-performance of the project. It is worth mentioning that the presentation of the EIA by the entrepreneur (that can also be the state), is not a guarantee that the work or activity may be installed or started, and it could not be otherwise, given the preventive aim of the instrument. And, in the case of acceptance of project implementation, for a license to be granted, adoption of the measures and conditions required by the licensing body for the necessary environmental safeguards must be ensured. In this way, the measures and environmental constraints, i.e., environmental control itself, emanates from the issuing of the environmental license and not from the presentation of the EIA. XI. Environmental Licensing as an Instrument of the Brazilian... 255 As such, the Amendment Proposal no. 6 5 /2 0 1 2 is going in the opposite direction to the movements of containment and prevention of risks and environmental damage. It is, in fact, illegal because it admits as a condition for authorization of execution of construction only the presentation of a previous EIA. Therefore, it proposes a total lack of control by the public power (environmental agencies) on environmental impact. Thus, if it were approved by the Senate –and this came to be raised, but public opinion showed a strong inclination to curb this trend –and subsequently approved by the President of the Republic, it would mean the dismantling of legislation that governs environmental licensing of construction or activities that may cause significant environmental degradation and, consequently, would undermine the right to an intergenerational ecologically balanced environment, according to Silva (2 0 1 3 , 5 6 ), which is essential to the healthy quality of life and a constitutional commandment5 . However, as already stated, since no law regulates the procedure of environmental licensing in Brazil, as the instrument was created by the PNMA, and the standards that discipline it are regulatory, first the need is felt for a law that details the procedure of licensing. Although Brazil recently passed Complementary Law no. 1 4 0 of 2 0 1 1 6 , which regulates article no. 2 3 7 of the Constitution and disciplines the competences of federal entities to perform environmental licensing, numerous bottlenecks have made environmental licensing an object of much criticism for delaying the implementation of large infrastructure projects in the country. The absence of a legal framework is identified as one of the problems, in the midst of so many others, such as constant litigation, the lack of technical resources in environmental agencies, the necessary consent of other agencies such as institutions and historical heritage management entities representative of the possible affected communities (Hoffmann 2 0 1 6 ). Many proposals are based on an idea of environmental licensing in a single step, for it occurs more quickly. Highlighting the reasons for the unsuitability of the single-step licensing scheme, Machado (2 0 1 5 , 3 2 2 ) shows that there is a desire to act rapidly in the interests of the country, with full respect for the needs of the present generation, not favoring ‘voracious capitalism’ but taking ‘balanced capitalism’ into account. The pro- According to José Afonso da Silva (2 0 1 3 , p.5 6 ), this is not goods in the public domain, but one of public interest, regardless of ownership. 6 Available at http://www.planalto.gov.br/ccivil_ 0 3 /Constituicao/Constituicao.htm. 7 Art. 2 3 . The Union, the states, the Federal District and the municipalities, in common, have the power: (CA No. 5 3 , 2 0 0 6 ). Sole paragraph. Supplementary laws shall establish rules for cooperation between the Federal Government and the states, the Federal District, and the municipalities, aiming at the attainment of balanced development and wellbeing on a nationwide scale. 5 256 ANGELA CASSIA COSTALDELLO posal made strikes at the heart of the fundamental right to an ecologically balanced environment and disrespects the principles of prevention and precaution, by not requiring due environmental licensing through successive steps of analysis of the impact of enterprises that are potentially polluting and can cause environmental damages. And, as well as other sensitive issues, with attempts to change the constitution or legislate distorted principles that relate to fundamental rights, the possibility of judicialization is another consequence. Another issue regarding the Constitutional Amendment Proposal 6 5 , 2 0 1 2 and discussions involving environmental licensing is a contradiction regarding the power and duty, imposed by the constitutional legislator, of the public authorities in the protection of the environment as laid down in art. 2 3 , VI and VII of CF, which were regulated by Complementary Law No. 1 4 0 of 2 0 1 1 . In fact, when it is established that a simple presentation of EIA allows the implementation of the project without any approval by the relevant authorities, this means denying the entire system of administrative law that governs the actions of public administration, as well as the specific competencies in the environmental field. 3 . The material inconsistencies of the Constitutional Amend ment Proposal no. 65, 2012, and the constitutional command ments in environmental matters As a result of this apparent unconstitutionality concerning procedures, the Constitutional Amendment Proposal that we have analyzed incurs material unconstitutionality, impairing the fundamental right of citizens to an ecologically balanced environment. In addition to the constitutional deficiencies pointed out, some issues concern contradictions in the way it was drawn up. Indeed, the table summing up the amendment, attached to the proposal, presents a different content from what was concretely worked out. In this connection, the full title says that the addition of paragraph 7 to Article 2 2 5 aims to ensure continuity of public constructions after the environmental license is obtained. But the content of the device is contradictory concerning the full title because it says that the continuation of any construction will be allowed with the presentation of the EIA. However, the final part of the paragraph, “[the construction] may not be suspended or canceled for the same reasons and not because of a supervening fact”, reveals a lack of legality and leads to - it should be noted straight away, an incorrect and reductionist interpretation in which the possibility of revision by the Public Power would be lost in case of illegality, disregarding the principle of access to jurisdiction. Equally, there would also be a violation of the principles of the right to access of the judiciary in case of injury or threat of law, determined in article 5 , Item 3 5 , of the Constitution. Finally, obstacles to the questioning of vices or faults in environmental licensing or presentation of the EIA by means of appropriate administra- XI. Environmental Licensing as an Instrument of the Brazilian... 257 tive and judicial capacity suppress the constitutional right to access to justice and the constitutional powers of the organs, such as the public ministry, offering public civil actions for protection of diffuse rights of a social nature, as well-grounded in the Technical Note in the MPF and the memorandum of Green Planet, mentioned above. In the urgent procedure for passing the Constitutional Amendment Proposal no. 6 5 , 2 0 1 2 , and in the sneaky adoption of the CCJ in the Senate, it is noted that there are significant economic and political interests that permeate environmental licensing regulation. The country is heading for a legislative change, with possible development of unconstitutionality in the future. The newly sworn-in Minister of the Environment, José Sarney Filho, seems to have realized that the theme is urgent, with the disclosure that the Ministry is studying the introduction of a new legal framework for environmental licensing in Brazil. For now, the positive side is that the executive is talking with the agents concerned8 . 4 . The treatment of environmental licensing and research institutes in the Spanish legal system The Spanish Constitution of 1 9 7 8 , like the Brazilian one, in Article 4 5 states that: “All have the right to enjoy an environment suitable for the development of the person, as well as a duty to preserve it. 2 . The public authorities shall ensure the utilization of all-natural resources, to protect and improve the quality of life and defend and restore the environment, also relying on the indispensable collective solidarity”9 . It is possible to observe that the Spanish constitutional text aims to safeguard the environment and imposes a duty on public authorities to promote and protect the environment, and still enshrines the principle of solidarity, adopting the principles of environmental protection enshrined in art. 2 2 5 of the Brazilian Constitution. The Ley de Evaluación Ambiental (LEA), the law no. 2 1 of 2 0 1 3 , incorporates international conventions and cooperation of which Spain is a signatory and norms in force in the European Union. In Articles 1 and 2 , it provides the instrument of ‘environmental assessment’ that must in- According to information from the website of the Ministry of Environment: Available at <http://www.mma.gov.br/index.php/comunicacao/agencia-informma?view =blog&i d=1 6 8 7 >. Accessed 1 5 July 2 0 1 6 . 9 Tod os tienen el d erecho a d isfrutar d e un med io ambiente ad ecuad o para el d esarrollo d e la persona, así como el d eber d e conservarlo. 2. Los pod eres públicos velarán por la utilización racional d e tod os los recursos naturales, con el fin d e proteger y mejorar la calid ad d e la vid a y d efend er y restaurar el med io ambiente, apoyánd ose en la ind ispensable solid arid ad colectiva. 8 258 ANGELA CASSIA COSTALDELLO tegrate the plans, programs and strategic projects that potentially impact the environment, aiming to ensure environmental protection in harmony with sustainable development1 0 . The Explanatory Memorandum to the LEA expressly indicates that environmental assessment includes strategic environmental assessment and evaluation of environmental impacts, and these are considered instrumental procedures and both are given in the simplified and ordinary form. So on the legislative plane, the procedural nature of these instruments is incontestable. The strategic environmental statement, an administrative decision handed down at the end of the procedure and enabling the realization of the work or the project, consists of a declaration by the environmental body that has a mandatory and binding character. After all competent bodies analyze the peculiarities of the projects regarding the consequences and interference to be caused in the environment, with the rigidity that the law requires, they take decisions regarding environmental impact and even what is considered the ‘zero’ option (i.e. non-performance of the project), contained in Article 3 5 .2 .a, of the LEA, as Ureta emphasizes (2 0 1 4 ). In Brazil, the legislation only covers the fundamental aspects of environmental impact assessment, which are then defined by the environmental licensor. Conama Resolution 2 3 7 of 2 0 0 7 in section III of article 1 (1 ) defines environmental studies as: [...] all and any studies related to environmental aspects related to the location, installation, operation and expansion of an activity or project, presented as a subsidy for the analysis of the license required, such as: en- The preamble of the Law states that “En el ámbito internacional, med iante el Convenio sobre evaluación d el impacto en el med io ambiente, en un contexto transfronterizo, d e 25 d e febrero d e 1991, conocid o como Convenio d e Espoo y ratificad o por nuestro país el 1 d e septiembre d e 1992 y su Protocolo sobre evaluación ambiental estratégica, ratificad o el 24 d e junio d e 2009. En el d erecho comunitario, por la Directiva 2001/42/CE, d e 27 d e junio, sobre evaluación d e las repercusiones d e d eterminad os planes y programas en el med io ambiente, y por la Directiva 2011/92/UE, d e 13 d e d iciembre, d e evaluación d e las repercusiones d e d eterminad os proyectos públicos y privad os sobre el med io ambiente, que la presente ley transpone al ord enamiento interno”. (Disponível em: <https://www.boe. es/boe/dias/2 0 1 3 /1 2 /1 1 /pdfs/BOE-A-2 0 1 3 -1 2 9 1 3 .pdf>. Acesso em: 1 4 July 2 0 1 6 ). The Preamble of the law says that “In the international sphere, through the Convention on the impact on the environment in a cross-border context of 2 5 February 1 9 9 1 , known as the Convention of Espoo and ratified by our country on 1 September 1 9 9 2 and on the protocol on strategic environmental assessment, ratified on 2 4 June 2 0 0 9 . In EU law, through Directive 2 0 0 1 /4 2 /EC of 2 7 June, on the evaluation of the impact of certain plans and programs on the environment, and Directive 2 0 1 1 /9 2 /EU of 1 3 December, evaluation of the impact of certain projects (public and private) on the environment, that this law transposes to the internal administration”. (Available at <https://www.boe.es/boe/dias/2 0 1 3 /1 2 /1 1 /pdfs/BOE-A-2 0 1 3 -1 2 9 1 3 .pdf>. Accessed 1 4 July 2 0 1 6 ). 10 XI. Environmental Licensing as an Instrument of the Brazilian... 259 vironmental report, plan and design of environmental control, environmental report, preliminary environmental diagnosis, management plan, plan for the recovery of degraded areas and preliminary risk analysis. It is important to note that the Spanish system contains legislation on strategic environmental assessment, this being one of the shortcomings of Brazilian Legislation. Rose Hoffmann (2 0 1 6 ), citing a study by Roberto Mangabeira Unger1 1 on environmental licensing in Brazil says: ‘In the Brazilian public administration, the environmental impacts caused by the project are assessed and taken into account, with the due depth, at a later date than the planning of actions, the achievement of specific studies and even the formulation of basic projects. There is no environmental planning, and the environment is often seen as one more step in the arduous and long way to achieving the development of infrastructure. There is not a forum in the country, at the national level, to discuss and define the priorities for investment in infrastructure and environmental preservation. In practice, the ministries are waging a struggle within the government, in Congress and on the media, to enforce, in each case and punctually, their priorities. Strategic environmental assessment is a mechanism that inserts the environmental variable precisely at the moment of planning policies for the construction of infrastructure. Its adoption by a country or by an institutional authority shows political maturity, in so far as it is an essential step toward sustainable development. This requires, however, a slight change in the decision-making processes of executive power’. In Spain, the satisfaction of all legal requirements and technical knowledge is embodied in the fact that the bodies responsible for issuing the environmental statement have to guarantee the quality and reliability of environmental assessment and preliminary public consultation of those affected by projects and plan to be evaluated. Lavish in detail, the legal regulation of the subject, embodied in Law 2 1 of 2 0 1 3 , checks the safety, reliability and reduction of risks and impacts to the environment, and conformity with the best and most extensive scientific knowledge which, as Ureta states (2 0 1 4 , 3 5 0 ), “no es un d esid erátum, sino un requisito juríd icamente exigible”. Even without examining the details, the existence of general law and instruments of environmental planning is effective for guaranteeing the legal security and greater effectiveness of environmental protection. Available at <http://www.law.harvard.edu/faculty/unger/portuguese/pdfs/1 1 _ Li cenciamento_ ambiental1 .pdf>. Accessed 1 4 July 2 0 1 6 . 11 260 ANGELA CASSIA COSTALDELLO 5 . Conclusions The finding of the procedure and the content of the Constitutional Amendment Proposal no. 6 5 , 2 0 1 2 , which proposes changes to the promotion of the security of environmental law, leads inevitably to reflection on the causes that lead the Brazilian National Congress to propose and approve proposals that substantially alter the procedure for environmental licensing in Brazil. Of all possible arguments, the first of them is that environmental licensing, despite being one of the main instruments of Brazilian environmental policy, supported by constitutional principles, has lacunae and failures, among which the absence of a general overarching framework. At this very moment, the United States, eager to tackle the economic and political crisis and hopefully the next major infrastructure works, is faced with the need to discuss environmental licensing, often lengthy and considered one of the barriers to social and economic development. There are, at the moment, no signs that the National Congress appreciates and will soon vote both the Constitutional Amendment Proposal no. 6 5 , 2 0 1 2 , and other bills that it is deliberating on or that still may be presented by the executive, as announced by the Minister of the Environment. For these reasons, an analysis and evaluation of the situation in other countries, such as Spain, leads to the conviction that the definition of procedure rules creates legal certainty and avoids the judicialization of issues, in addition to obtaining instruments of territorial planning, such as the strategic environmental assessment, which can be used and implemented by Brazil. Bibliography Constituição da República Federativa do Brasil de 1 9 8 8 . Available at <http://www.planalto.gov.br/ccivil_03/Constituicao/Constituicao.htm>. Accessed 15 July 2 0 1 6 . Constituição de 1 9 7 8 . Available at <http://www.boe.es/boe/dias/1 9 7 8 /1 2 /2 9 / pdfs/A2 9 3 1 3 -2 9 4 2 4 .pdf>. Accessed 1 4 July 2 0 1 6 . Farias, Talden. 2 0 0 7 . Da licença ambiental e sua natureza jurídica. Revista Eletrônica d e Direito d o Estad o 9 : 3 -5 . Available at <http://www.direitodoes tado.com/revista/REDE-9 -JANEIRO-2 0 0 7 -TALDEN%2 0 FARIAS.pdf>. Accessed 1 2 July 2 0 1 6 . Hoffmann, Rose. Gargalos do licenciamento ambiental federal no Brasil. Available at <http://www2 .camara.leg.br/documentos-e-pesquisa/publicacoes/estnot tec/ areas-da-conle/tema1 4 /2 0 1 5 _ 1 8 6 8 _ licenciamentoambiental_ rose-hofmann>. Accessed 1 4 July 2 0 1 6 . Instituto o Direito por um Planeta Verde. Planeta Verde lança carta de repúdio à PEC6 5 /2 0 1 2 . Available at <http://www.planetaverde.org/noticia/instituto/2 9 0 4 / planeta-verde-lanca-carta-de-repudio-a-pec6 5 2 0 1 2 >. Accessed 1 6 May 2 0 1 6 . Jefatura Del Estado. Boletín Oficial d el Estad o, no.2 9 6 , 2 0 1 3 . Available at <https://www.boe. es/boe/dias/2 0 1 3 /1 2 /1 1 /pdfs/BOE-A-2 0 1 3 -1 2 9 1 3 .pdf>. Accessed 1 4 July 2 0 1 6 . XI. Environmental Licensing as an Instrument of the Brazilian... 261 Lei no. 6 .9 3 8 , de 3 1 de agosto de 1 9 8 1 . Dispõe sobre a Política Nacional do Meio Ambiente, seus fins e mecanismos de formulação e aplicação, e dá outras providências. Available at <http://www.planalto.gov.br/ccivil_ 0 3 /lEIA/L6 9 3 8 .htm>. Accessed 1 4 July 2 0 1 6 . Machado, Paulo Afonso Leme. 2 0 1 5 . Direito ambiental brasileiro. 2 3 . ed. rev., atual. e ampl. São Paulo: Malheiros. Ministério do Meio Ambiente. MMA e agricultura discutem licenciamento. Available at <http://www.mma.gov.br/index.php/comunicacao/agencia- informma?view= blog&id=1 6 8 7 > Accessed 1 5 July 2 0 1 6 . Ministério do Meio Ambiente. Resolução Conama nº 2 3 7 , de 1 9 de dezembro de 1997. Available at <http://www.mma.gov.br/port/conama/res/res97/res2379 7.html>. Accessed 1 3 July 2 0 1 6 . Ministério Público Federal. Nota Técnica - A PEC 6 5 /2 0 1 2 e as Cláusulas Pétreas. Available at <http://www.mpf.mp.br/pgr/documentos/nota-tecnica-pec- 6 5 2 0 1 2 />. Accessed 1 6 May 2 0 1 6 . Paraguassu, Lisandra. 2 0 1 6 . Temer defende mudança em regras de venda de terra a estrangeiros e de licenciamento ambiental. Jornal O Globo. Available at <http://extra.globo.com/noticias/brasil/temer-defende-mudanca-em-regras-devenda-de-terra-estrangeiros-de-licenciamento-ambiental-1 9 6 9 4 6 8 1 .html>. Accessed 1 4 July 2 0 1 6 . Senado Federal. 2 0 1 5 . Projeto de Lei do Senado nº 6 5 4 , de 2 0 1 5 . Dispõe sobre o procedimento de licenciamento ambiental especial para empreendimentos de infraestrutura considerados estratégicos e de interesse nacional. Available at <https://www25.senado.leg.br/web/atividade/materias/-/materia/123372>. Accessed 1 5 July 2 0 1 6 . Senado Federal. Proposta de Emenda à Constituição nº 6 5 , de 2 0 1 2 . Acrescenta o § 7 º ao art. 2 2 5 da Constituição, para assegurar a continuidade de obra pública após a concessão da licença ambiental. Available at <https://www2 5 .senado.leg. br/web/atividade/materias/-/materia/1 0 9 7 3 6 >. Accessed 1 3 July 2 0 1 6 . Silva, José Afonso da. 2 0 1 3 . Direito ambiental constitucional. 1 0 . ed. rev. e atual. São Paulo: Malheiros. Ureta, Agustín García. Comentarios sobre la Ley 2 1 /2 0 1 3 , de evaluación ambiental. Revista d e Ad ministración Pública 1 9 4 : 3 1 7 -3 7 1 . Madrid. May/August 2 0 1 4 . Uribe, Gustavo. Temer garante retomar demarcações indígenas e licenciamento ambiental. Folha d e S.Paulo, 1 4 July 2 0 1 6 . Available at <http://www1 .folha.uol. com.br/poder/2 0 1 6 /0 7 /1 7 9 0 9 4 0 -temer-garante-retomar-demarcacoes-indigenas-e- licenciamento-ambiental.shtml>. Accessed 1 4 July 2 0 1 6 . C H A P T E R XI I REFLECTIONS ON PUBLIC POLICIES IN THE FIELD OF DRINKING WATER Miriam Mabel Ivanega SUMMARY: 1 . Introduction. The supply of drinking water –1 .1 Human rights and/or public service? –1 .2 Comments on public service. The public drinking water service –2 . Public policies on drinking water. Social trust in delivery mechanisms –3 . Conclusions. 1 . Introd uction. The supply of d rinking water 1 .1 Human rights and /or public service? In the area of human rights at greater “absent” or “scarcity”, the greater is also the need to analyse the causes of the omissions that occur and to propose possible solutions. Two recent examples of this are the lack of public transparency and citizens’ dissatisfaction with the supply of drinking water1 . With regard to the latter, it is worth remembering that the human right to water has been recognized by legal systems since ancient times, but with different nuances than those it presents today (Pinto and Liber, 2014). We must consider access to drinking water and sewage services as a human right, without prejudice to the distinctions that the doctrine has established between these and fundamental rights. There are differences between these two categories of rights, since they do not mean the same thing, although there is a profound interrelationship between them. Human rights have an ethical dimension; they are powers inherent to the person that must be recognized by positive law. When such recognition occurs, fundamental rights appear, “whose name evokes their function as the foundation of the legal order of states governed by the rule of law”. From this difference it follows that not all human rights are received Drinking water is "water used for domestic purposes and personal hygiene, as well as for drinking and cooking" http://www.who.int/water_ sanitation_ health/mdg1 /es/ index.html. 1 264 MIRIAM MABEL IVANEGA in states’ legal systems, not even in states governed by the rule of law. Even those human rights that are recognized as fundamental can enjoy different guarantee mechanisms. It follows that the character of universality is postulated as a deontological condition of human rights, but not of fundamental rights (Perez Luño, 1 9 9 8 ). Incorporation into international instruments has reinforced the importance of human rights. For example Resolution A/HRC/RES/2 7 /7 (2 0 1 4 ) of the Human Rights Council of the United Nations General Assembly called on states to “ensure that everyone has access without discrimination to effective remedies for violations of their obligations regarding the human right to drinking water and sanitation, including judicial, quasi-judicial and other appropriate remedies”. Previously, in July 2 0 1 0 , the United Nations General Assembly (Resolution A/RES/6 4 /2 9 2 ) explicitly recognized the human right to water and sanitation, and understood that clean drinking water and sanitation are essential for the realization of all human rights. This resolution urges states and international organizations to provide financial resources, training and technology transfer to assist countries, particularly the so-called “developing countries”, to provide safe drinking water and sanitation that is clean, accessible and affordable for all. Also, in 2 0 0 2 , the Committee on Economic, Social and Cultural Rights adopted General Comment No. 1 5 on the right to water, article I.1 of which states that “The human right to water is indispensable for a dignified human life” and involves the right of everyone to have sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. The “Convention on the Elimination of All Forms of Discrimination against Women” (1 9 7 9 ) in article 1 4 , paragraph 2 and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador” of 1 9 8 8 , provided that everyone has the right to a healthy environment and to basic services. Complementarily, the “Convention on the Rights of the Child” (art. 2 4 , 2 nd paragraph) requires states to combat diseases through the provision of safe drinking water. In this context, the World Health Organization (WHO) has repeatedly warned of the seriousness of the fact that one in three people in the world does not have enough water to meet their daily needs, given the direct effects this has on their health and the impossibility of preventing and curing disease. Therefore, States therefore have a duty to devise all possible mechanisms to protect the health of the population, which is why they must pay particular attention to the quality of the water to be supplied. Voluntary or accidental consumption of contaminated water and direct exposure to it help to increase the population’s morbidity rates, especially with regard to children, who are most at risk (Hantke-Domas and Jouravlev, 2 0 1 1 ). According to the WHO, contaminated water and poor sanitation are linked to the transmission of diseases such as cholera, diarrhoea, dysentery, XII. Reflections on public policies in the field of d rinking water 265 hepatitis A, typhoid and polio. Insufficient or inadequately managed water and sanitation services expose people to preventable risks. In order to establish uniform parameters to prevent these ills, the Agency develops a series of guidelines on drinking water quality, including, since 2 0 0 4 , the promotion of water sanitation plans to identify and prevent risks before water is contaminated. In 2 0 1 5 it introduced the Sanitation Safety Plan and since 2 0 1 4 it has been testing domestic water treatment products in accordance with the health performance criteria set out in the WHO International Plan for the Evaluation of Domestic Water Treatment Technologies. This plan aims to ensure that the products distributed protect users from pathogens that cause diarrhoeal disease and to strengthen regulatory and monitoring mechanisms at the national level to support the proper targeting of such products and their systematic and correct use. According to 2 0 1 6 statistics, at least 1 .8 billion people worldwide are supplied with a source of drinking water contaminated by faeces, and it is estimated that such contamination causes more than 5 0 2 ,0 0 0 deaths from diarrhoea each year. By 2 0 2 5 , half of the world’s population will live in water-scarce areas, and climate change, increasing water scarcity, population growth, demographic changes and urbanization all pose challenges to water supply systems. In low- and middle-income countries, 3 8 per cent of health facilities lack water sources, 1 9 per cent lack improved sanitation and 3 5 per cent lack water and soap for hand washing2 . It is clear that the concern for the scarcity and quality of drinking water must be reflected in national and local public policies, with the inclusion of objectives for preventing and solving such problems, as well as the incorporation of instrumental paths for carrying them out. With respect to the latter, a first step of analysis consists of responding to the following question: Is the supply of drinking water a human right, a public service, or both? Can these notions be made compatible, taking into account that drinking water is an essential element for human life and that its consideration as a public service can lead to unfair regulations and costs? In that sense, one of the aspects that generate uncertainty when evaluating drinking water as a human right is the high cost of creating adequate infrastructure for water extraction and distribution (Mendizábal Bermudéz and Sedano Padilla, 2 0 1 0 ). These issues are reflected in the conflicts that arise in the face of certain policies that society considers contrary to its rights, such as the one in the State of Baja California, Mexico, which originated with the enactment of the State Water Law in December 2 0 1 6 and whose very short duration (it was left without effect in January 2 0 1 7 ) showed the 2 www.who.int/mediacentre/factsheets. 266 MIRIAM MABEL IVANEGA angry political criticism and social resistance to private intervention in the supply of drinking water. This law envisaged, inter alia, participation of the private sector through so-called Public-Private Associations, which could provide public services and execute the works. The reaction was immediate and forceful, with a clear message: to oppose any privatization technique, understanding that allowing the interference of private companies became a lucrative business for a few, with consequent harm to citizens. Beyond the criticism of the entire system implemented by this law, the aspect that produced the most rejection was the increase of up to 2 0 % of the tariff for water supply, which would be updated annually by means of a technical formula. This was definitely a resistance to public policies that, however, in other countries have been accepted without a majority complaint from the population. 1 .2 Comments on public service. The public d rinking water service “The public service of drinking water distribution and the right to water are today closely linked, to the extent that part of the doctrine (...) reduces the content of this service” (Pinto and Liber, 2 0 1 4 ). Referring to the supply of drinking water as a public service confronts us with a first problem: the complexity and imprecision of the definition, added to the ideological burden and the ups and downs of the national and regional economies that have given it non-legal characteristics. It can well be argued that there is a notion for every public law doctrine that studies the subject, and that each country has confirmed with its own imprint, a specific regulation with different scopes, although always with the common denominator of the existence of a need and a subject that is the recipient: the user. The expression “public service” appears in administrative law without a legal definition that would have typified it and without having established its characteristics in a precise way. That is why it is said that it was French doctrine and case law that shaped this institution with a special legal regime under public law, designed to govern the provision of services to meet general interest needs assumed by the state, which began to provide these services directly or indirectly in the last century. It goes beyond the present paper to analyse the many criteria that have been developed in comparative law and in our country, ranging from the Ecole de Bordeaux, which proposed that all state activity was a public service, to the extreme of those who propose to radically suppress the concept. We have had the opportunity to summarize several of the approaches elaborated by the Argentine doctrine, some of which had special importance in view of the transformation of the economic and XII. Reflections on public policies in the field of d rinking water 267 administrative structure of the 1 9 8 0 s and the role assumed by the state as a consequence of the privatization processes (Ivanega, 2 0 1 3 ) We understand that a notion with substantial data that allows identifying the public service and with which we agree is the one expressed by the Supreme Court of Justice of the Nation de Argentina in the case “Centro d e Estud ios para la Promoción d e la Iguald ad y la Solid arid ad y otros el Ministerio d e Energía y Minería s/amparo colectivo” del 1 8 de agosto de 2 0 1 6 (Center of Studies for the Promotion of Equality and Solidarity and the Ministry of Energy and Mining s/amparo colectivo of August 1 8 , 2 0 1 6 )3 . In this regard, it was indicated that the “activities or services essential to society, reserved for public ownership through the qualification of public service, are those whose benefits are considered vital and indispensable for all citizens, in order to ensure their provision. These are sectors and activities that are essential to the community because in them citizens satisfy the substantial content of constitutionally protected rights and freedoms”. Despite the fact that there is no agreement on the elaboration of a univocal concept, the doctrine explains with a certain uniformity that the essential characteristics of public service are the following: continuity, regularity, equality, generality and obligatory nature. Uniformity is understood by some authors as an independent characteristic, while for others it can be included within equality. Notwithstanding this, the current perspective that incorporates sustainability and efficiency is interesting. The latter is a cardinal criterion for assessing whether public intervention is suitable for satisfying, with the least sacrifice of competing interests, the purpose of regulation for competition in naturally monopolistic public services. First of all, it should be mentioned that if what legitimates the existence of a public service is a collective need, which cannot be satisfied in any other way than through the technique of public service; the way to ensure that the service is provided is the rule of continuity. Under that approach, the service must be provided without interruption, without prejudice to the fact that it may be suspended depending on the nature of the provision, since in certain cases it is only required to be provided when the need arises (e.g. public fire-fighting service). Therefore, it is to be understood that there must be a permanent offer and the possibility of using the service within the terms and conditions that regulate it. At this point, it is to be considered that the drinking water service is a service that must be provided without interruption, since its suspension affects vital needs, and could therefore only be restricted exceptionally and under certain conditions. The service must also be provided in accordance with the technical, legal and economic rules governing its provision, which implies 3 CSJN Fallos 3 3 9 :1 0 7 7 (2 0 1 6 ) 268 MIRIAM MABEL IVANEGA compliance with the requirement of regularity. It is important, among other things, to impose plans for operation and expansion of networks, and conditions of sufficient quantity and quality of the service (pressure levels, chemical composition of the water). Equality is a requirement inherent in the nature of public services, also defined as “non-discrimination”. It is a guarantee for the users of the service so that they are given equal treatment, legally and economically, without differences, unless these are based on the unequal condition in which each user is objectively found. Therefore, this does not prevent objective categories of users from being established, for example on the basis of consumption, because the service must be provided for all applicants who are in the same situation. With that in mind, in the above-mentioned judicial precedent, Judge Rosatti recalls that in order to guarantee the reasonableness of the tariff of an essential public service, it is essential that there be a clear differentiation of sectors and regions, with particular attention to the most vulnerable: El article 1 6 National Constitution “does not impose a rigid equality, so that such a guarantee does not prevent the legislator from contemplating differently situations that he considers to be different, and he attributes to his prudence a broad freedom to order and group, distinguish and classify the objects of the legislation (Judgments: 3 2 0 :1 1 6 6 ), insofar as the distinctions or exclusions are based on reasonable grounds and not on a purpose of hostility to a particular person or group of persons or on undue personal or group privilege (3 1 5 :8 3 9 ; 3 2 2 :2 3 4 6 )”. These egalitarian imperatives derive generically from article 1 6 and cc. of the National Constitution and also, in particular with regard to the provision of an essential public service, and from the provisions of article 4 2 of the Constitution “insofar as it recognizes the right of users to ‘equitable’ treatment”. This is generally linked to equality and consists of the recognition that all inhabitants have the right to use public services. Their presence precludes arbitrary or undue exclusion. It is the presence of the user, at the right levels and in the right quantity, that gives, or does not give, the essential character of generality to the public service. This means that the service must reach everyone, or as many people as possible, which is why the human right to water, as with the principle of equality, makes accessibility its core. The nature of the obligation is directly related to the configuration of the legal regime of the public service, since it would not make sense if the effective provision of the service and therefore the satisfaction of collective needs were not ensured. In short, it is related to the right of users to complain to those who have the duty to provide it. It has also been argued that this principle, which curbs the expansive force of the concept of public service, is precisely what is obligatory. In the case of water, this characteristic has a double facet, because on the one hand it is obligatory for the provider to provide the service, but on the other hand it imposes the forced connection on the user, “based on XII. Reflections on public policies in the field of d rinking water 269 reasons of sustainability of the service, health and environment”. For the latter reason, its use is not optional for the individual, and the connection is compulsory for all those who have a network at their disposal. However, the importance of the right to water is manifested with a clear accentuation of the above-mentioned characteristics, to such an extent that it has been affirmed “that it is perhaps in the water service where the questioned characteristics have their greatest justification and validity” (Pinto and Liber, 2 0 1 4 ). In short, these principles should be present in any form or system of provision, without changes towards privatizing models having a negative impact on their presence. It is important to consider that water cannot be adequately provided by the market. It is a public service considered as a natural monopoly since it would be contradictory to build more than one infrastructure for provision when a single supplier can produce at lower unit costs. If, in addition to this service, the monopoly provider adds sanitation, it can add economies of scope compared to those that only provide drinking water. Therefore, if the monopoly is natural, since it offers clear economies of scale and eventually scope, the policy response is regulation in order to try to ensure that the lower costs and greater efficiency are passed on to the users and also to try to prevent the single provider from abusing a dominant market position. In line with this reasoning, another of the causes underlying a regulatory policy is linked to the lack of information available to consumers or users, which hinders decision-making under conditions of parity with suppliers of public goods or services. It would be difficult for them to know the quality conditions of water for consumption, which is why it is the state that, through regulation, controls and obliges the provider to provide consumers with information on this subject, as well as the characteristics and prices of the service (Mata, 2 0 0 9 ). In the latter sense, the Supreme Court of Justice of the Nation of the Argentine Republic has understood that there exists a right of substantial content which is the right of all users to receive from the state adequate, truthful and impartial information. The ability to access information with these characteristics is a fundamental element of the rights of users, “since this knowledge is an unavoidable prerequisite for them to be able to express themselves in a well-founded manner, to hear all interested sectors, to deliberate and form opinions on the reasonableness of the measures to be adopted by the public authorities, trying to overcome the natural asymmetries that exist between an individual and the state, which will have to set the rates for public services”. It has been an undeniable reality in recent years in Latin America that from the direct use of water, the execution and operation of works and the direct provision of public utility services by the latter, there has been a shift towards regulation, control and promotion of activities carried out by autonomous public bodies, local governments or directly by the private sector. This has implied a structural change in the supply of 270 MIRIAM MABEL IVANEGA drinking water and sanitation, which has had different degrees of development (Jouravlev, 2 0 0 4 ). In both Argentina and Chile significant transformations took place with the participation of 1 the private sector, generating normative restructuring, new regulatory frameworks and tariff adjustment schemes that guaranteed the economic and financial sustainability of the services, without prejudice to the subsidy systems. This new approach to the provision of drinking water was introduced in other countries, albeit with operational and regulatory differences and results in terms of service effectiveness (for example, Bolivia, Colombia, Costa Rica, Nicaragua, Peru, Panama, Paraguay and Uruguay). In the Argentine Republic, the modalities of provision ran through different paths. In 1 9 8 0 , the services provided by the Empresa Obras Sanitarias de la Nación were transferred to the provinces, resulting in the decentralization of drinking water and sanitation services (Law 1 8 ,5 8 6 , Decree 2 5 8 /8 0 ). In the 1 9 9 0 s, half of Argentina’s provinces transferred the provision of drinking water and sanitation services in the main geographical areas of their respective jurisdictions to private capital under the concession regime. A similar process was adopted by the National Government in the Metropolitan Area of Buenos Aires (AMBA), which is made up of the Federal Capital and the main municipalities of Greater Buenos Aires4 . In this process of transformation, the state reserved for itself the functions of formulating sectorial policies, regulation and control, delegating to the private sector actions related to the operation and expansion of such services. The regulation had to ensure those users were provided with a good service at the most efficient cost possible and that private providers were adequately remunerated, without prejudice to ensuring the community’s objectives regarding public health and the preservation of environmental quality5 . After thirteen years of the concession, in March 2 0 0 6 the concession contract was terminated (Decree No. 3 0 3 /0 6 ) and the supply of those services was assigned to a national state company created for that purpose Decree No. 7 8 7 of 2 2 April 1 9 9 3 approved the award of the concession for the provision of drinking water and sewerage services provided by Empresa Obras Sanitarias de la Nación, in favour of the consortium Aguas Argentinas Sociedad Anónima, which at that time was made up of Sociedad General de Aguas de Barcelona Sociedad Anónima; Anglian Water PLC Sociedad Anónima; Compagnie Generale Des Eaux Sociedad Anónima; Sociedad Comercial del Plata Sociedad Anónima; Banco de Galicia y Buenos Aires Sociedad Anónima and Meller Sociedad Anónima, the operator being the French company Lyonnaise des Aux Dumez Sociedad Anónima. 5 Report on water management in the Argentine Republic by Calcagno Alberto, Mendiburo Nora and Gaviño Novillo Marcelo, January 2 0 0 0 - ECLAC, ttp://www.cepal. org/drni/proyectos/samtac/inar0 0 2 0 0 .pdf 4 XII. Reflections on public policies in the field of d rinking water 271 (“Aguas y Saneamientos Argentinos Sociedad Anónima” - Decree of Need and Urgency No. 3 0 4 /0 6 -Law 2 6 ,1 0 0 ). Without entering into the debate on the causes that led to the termination, it is worth noting what is indicated in the respective decree (No. 3 0 3 /0 6 ), which indicates a clear public policy contrary to that which had been implemented in previous decades, by stating that while the concessionaire “conceives drinking water exclusively from a market economy perspective, the state intends that, without prejudice to constituting an economic good, it should be valued and managed as what it is: a social and cultural good, which in legal terms translates as a Human Right”. This brief commentary confirms, without further effort, the marked changes that can occur with respect to the same public service, where the ways of providing it will have social acceptance or rejection, and therefore will lead to changes or adjustments in public policies. 2 . Public policies on d rinking water. The social trust in the services supply It is feasible to set up at least two levels of public policy in terms of access to drinking water and to sanitation systems. The first level, that we identify as the “main content” of the policy is the recognition that the access to drinking water is a human right. The consequent public policies and their respective implementations should be structured on the basis of that reality. With that structural basis, the decisions to be taken will be linked to foresee the most effective mechanisms to allow society to enjoy that human right according with international quality standards. On this point –which is explained here with the maximum degree of simplification –a series of discussions and previous decisions agreed with economic, financial and social policies, without dismissing the intervention of other political actors just as it was already told. This whole set of policies will be mainly settled on in legislative and regulatory, rules expressing the nature of continuity, regularity, equality and generality. However, according with the specialized doctrine, we know that for the setting and the regulation of this human right it will be necessary to consider that: a) They have interrelationship with other human rights those with a limited and variable content and a progressive satisfaction not involving the free-of-charge (only affordability) nor necessarily the direct supply of the service by public authorities, the private management are excluded; (b) It includes the access to the amount of water dedicated for personal and domestic use but also for other needs “related to human rights entirely”; (c) It is at the same time a need and a human and individual right and a collective right, and 272 MIRIAM MABEL IVANEGA (d) The right is not absolute because it can be limited according with the public or private interest that it’s submitted to integration and normative harmonization, taking in account that its content and exercise cannot be altered. Another judicial former example is suitable in this case: “Kersich, Juan Gabriel y otros c/ Aguas Bonaerenses S.A. y otros s/ amparo” dating 2 February 2 0 1 4 , the Argentine Supreme Court of Justice6 analyzed the action initiated by a group of residents of the City of 9 de Julio, Province of Buenos Aires, against Aguas Bonaerenses S.A. (ABSA), a provincial corporation7 , with the purpose of this saying company begin to carry out within 1 8 0 days –or in the deadline established by the Court –, the necessary work and tasks to adapt the quality and potable condition of the water for domestic use, according with the parameters of the OMS/World Health Organization according with the article 9 8 2 of the Argentine Food Code and to determine the deadline of the effective adaptation of a specific project with clear due dates of development, and its later implementation for both authorities the Buenos Aires Water Control Agency and the local appropriate areas. The claim was based on the fact that the water provided by the company supplying the service had high levels of arsenic that were higher than those allowed by the law. The claim was also addressed against the Province of Buenos Aires, as the owner of the aquifer area whose preservation is under the responsibility of the company supplying the service, and due to that company must conserve the natural resources according to the local Constitution. In that opportunity, the Supreme Court said that the access to drinking water affects directly people life and health, “and for this reason it must be protected by judges”. Therefore, it pointed out that in the field of collective rights the protection of water looks as an essential subject for the nature in order to maintain the system and its capacity for resilience. But coming back to the primary axiological data –it is the category of human rights –and to the way of managing the service it should be noted that in the context of the public policies to be taken it should discuss and decide “who” will be in charge of the supply. In this topic, the formation of public policies must recognize that nowadays from the perspective of government priorities public authorities need to invest in expanding coverage and subsidies for the poorest people in order to socialized that service and everyone can reach it. These political priorities are well reflected in the state budget, in the construction of solid and stable institutions, in the defense of efficiency and transparency and in the control of corruption, etc. Under this prism CSJN Jury’s Decisions 3 3 1 :1 3 6 7 The company is in charge of collecting, purifying, transporting and distributing drinking water as well as collecting, treating and disposing of wastewater 6 7 XII. Reflections on public policies in the field of d rinking water 273 efficiency and equity are not presented as antagonistic but as complementary criteria due to that the costs decrease when the most adequate ways are used to meet needs. In other words, whether they are public mixed or private providers the governments must guarantee a fair and reasonable return applying principles of good faith, due diligence and the obligation of transferring efficiency gains to consumers. Artificial guarantees and protections increase the moral risk of inefficiency and failure because they provide assurances that are not sustainable in the long term and distort incentives for decision making “(...) The concern about these issues proceed from the conviction that a good provision of drinking water and sanitation services is relevant to public health, social equity, economic development and environmental sustainability” (Hantke-Domas and Jouravlev, 2 0 1 1 ). In other words, if the objective is to increase the use of drinking water and improve the well-being of the population without an inefficient increase in public spending, the authorities should consider the most efficient instruments, based on constitutional principles, in meeting these objectives, including, for example, the choose of the service supplier. However, such policies may be changed (before, after or once finished the stage of implementation) by elements that will directly influence them, such as the reaction of society whose confidence or lack of confidence in the policies and authorities may change the foreseen plan. The problem of transferring to the private sector the provision of a public service through which a human right is satisfied seems to have a strong basis in social mistrust8 . The procedures of privatization carry on their shoulders the labels of “corrupt acts” and the belief of the user that besides the consequences of this scourge, he or she will bear the burden of inefficiency and the greater cost of the service provided. We are facing a case of “political trust” universally well considered for democracy which generates the desire of citizens, in general, to comply with their tax obligations to mistrust, it is worth mentioning the analysis carried out by the World Bank regarding the relations voluntarily abide by the legal rules, the most talented ones want to access to public administrations and also to voluntarily accept government policies. Regarding this social position and the distrust, we must mention the analysis of the World Bank concerning the common and general relations of appropriation of the public issues by the private sector - both areas full of corruption understanding that there are three links: state capture, influence and administrative corruption9 . Confidence according to the Dictionary of the Spanish Language in its first meaning is: “1 . f. Firm hope that one has of someone or something”. 9 We believe it is important to bring up these notions, given the cases of corruption that have been denounced in recent years in Latin America in the area of privatizations, and because it is one of the most effective mechanisms of public appropriation. “These 8 274 MIRIAM MABEL IVANEGA The first one is the attempt of companies to influence in the formulation of laws, the policies and regulations of the state through illicit payments –from private nature –to public officials. The companies use special ways to influence state decisions in order to get specific advantages usually imposing obstacles to competition. “This improper influence create high and concentrated profits for certain powerful companies with a high socio-economic cost”. The attempts of companies to influence in the creation of the legal environment the economic policies and the regulations are part of a normal and healthy ordinary process for all the countries. The exclusion stands out these interactions in a state-capture-economy. Namely some companies enjoy exclusive privileges to influence in state decisions while others are systematically excluded, “allowing public officials to choose options concentrating the benefits in those they have access and imposing a high cost on those who are excluded” (Hellman, Geraint, Jones and Kaufman, 2 0 0 1 ). The influence is connected with the same capacity but without such payments. And the administrative corruption refers to so-called “petty” forms of bribery in connection with the implementation of existing laws rules and regulations. (Hellman, Geraint, Jones and Kaufman, 2 0 0 1 ). 3 . Conclusions Due to the importance of drinking water for the life of individuals it is necessary that public policies observe constitutional principles and consider for all the people the to quality, reasonable rates adjusted to the conditions of the user and to the categories reasonably established; they must also guarantee the user participation and the respect of the whole compliance, and the supply regulation and control. But they must also have the instruments and the actions to make effective these objectives following the constitutional rights which do not become fictitious, and provide the specific rules of education and social responsibility in the use of water in accordance with international recommendations. We are facing policies directly involving the relationship state society since they set up duties for both parts and also the rights for the human are framed within the guidelines and dynamics of global adjustment plans, which are based on the supremacy of the market and/or the private sector over the State or public sector, advocating the reduction of all State intervention or participation in the economy to a minimum” ( Hellman, Geraint, Jones and Kaufman, 2 0 0 1 ). For its study, the World Bank starts from the so-called transition economies, particularly in Eastern Europe and the former Soviet Union, countries that had to reorient the role of the State in the economy, applying liberation and privatization strategies and replacing methods of imposing the State on companies with market mechanisms XII. Reflections on public policies in the field of d rinking water 275 person, it means that we cannot forget a comprehensive and systemic analysis of the access to drinking water. For this reason, there is an artificial division between human rights and public services because –as the Supreme Court of Justice of the Nation has held in the Argentine Republic –the substantial content of the rights and freedoms constitutionally protected are fulfilled through essential services. From our point of view the dichotomies between human rights and public services, go over the line of the legal issues because cultural historical sociological aspects, etc. must be considered. In this way, questions arise within the community such as: can the exercise of a fundamental right be the object of privatization instruments? Is it feasible that the private supplier becomes the only manager of the supply and the fee to be received for the service recognizes it not only the costs of the service, investments, business risk and profits? But besides this matter does it imply profiting from a precious asset such as the human right of every individual? There is a mistrust of the political decision inside the answers of the society which is completed by the continuous suspicion of the existence of corrupt negotiations between authorities and companies. In the discussion of these questions there is an undeniable premise: the regulation of the provision of drinking water and sanitation services must be compatible with their nature as a human right. For this reason, beyond the ideologies surrounding the economic regulations and privatization instruments, we will be in front of a public, private o mixed supplier but the supply of drinking water cannot be separated from this human essence. The Legislative and Executive Powers must build the suitable way to satisfy this right evaluating the aspects indicated above within a framework of public transparency guaranteeing the maximum degree of efficiency and protection for the individual. Bibliography Azpiazu, Daniel. 2 0 0 2 . “Privatización del agua y el saneamiento en Argentina: El caso paradigmático de Aguas Argentinas S.A.”. Revista Vértigo 7 Juin https://vertigo.revues.org/9 7 3 0 . Calcagno Alberto, Mendiburo Nora, Gaviño Novillo Marcelo, enero 2 0 0 0 CEPAL, ttp://www.cepal.org/drni/proyectos/samtac/inar0 0 2 0 0 .pdf. Cassagne, Juan Carlos. 2 0 1 0 . Derecho ad ministrativo, T.II, Palestra, Lima. Gordillo, Agustín. 2 0 1 4 . Tratad o d e Derecho Ad ministrativo, T.2 , F.D.A, Buenos Aires. Hantke-Domas, Michael y Jouravlev, Andrei. 2011 1 . Lineamientos d e polìtica pública para el sector d e agua potable y saneamiento, CEPAL-Naciones Unidas, Chile. Hellman, Joe S., Geraint, Jones, & Kaufmann, Daniel. Capture al Estado, capture el dia. Captura del Estado, corrupcion e influencia en la transicion. Gestión y Análisis 276 MIRIAM MABEL IVANEGA De Políticas Públicas, en https://revistasonline.inap.es/index.php/GAPP/article/ view/2 6 2 . Hellman, Joe S., Geraint, Jones, & Kaufmann, Daniel. 2 0 0 1 . La captura del Estado en las economias de transicion. Finanzas & Desarrollo Septiembre. https://www.imf.org/external/pubs. Herreros Vázquez, Francisco. 2 0 0 4 . La confianza política en la tradición republicana desde Cicerón hasta Madison. Revista d e Estud ios Políticos (Nueva Época) 1 2 5 , julio-setiembre. Ivanega, Miriam M. 2 0 1 3 . Instituciones d e d erecho ad ministrativo, Serie Derecho Administrativo N°1 2 , 2 da. edición, Universidad del Externado de Colombia, Bogotá Ivanega Mirian M. 2 0 1 6 . El control público, Astrea, Buenos Aires. Jouravlev, Andrei. 2 0 0 4 . Los servicios d e agua potable y saneamiento en el umbral d el Siglo XXI, CEPAL, Publicación de las Naciones Unidas, Santiago de Chile. Massimino, Leonardo. 2 0 1 6 . La efectivid ad d el principio d e acceso abierto a los servicios públicos, www.eldial.com -DC2 2 6 D-. Mata, Ismael. 2 0 0 9 . Ensayos d e Derecho ad ministrativo, Ediciones RAP, Buenos Aires. Mendizábal Bermúdez, Gabriela y Sedano Padilla, Mariana Guadalupe. 2 0 1 0 . El agua potable como derecho fundamental para la vida. Misión Juríd ica, Revista d e Derecho y Ciencias Sociales 3 : enero--diciembre, Colombia. Perez Hualde, Alejandro, Ivanega, Miriam M. 2 0 0 6 . Asociaciones d e usuarios, control por participación necesaria y legitimación procesal activa, Ediciones RAP, Buenos Aires. Perez Hualde, Alejandro. 2 0 0 6 . Servicios públicos y organismos d e control, LexisNexis, Buenos Aires. Perez Luño, Antonio. 1 9 9 8 . La Universalidad de los derechos humanos. Anuario d e filosofía d el d erecho 1 5 , Editores, Ministerio de Justicia, Boletín Oficial del Estado, Sociedad Española de Filosofía Jurídica y Política, España. Pinto Mauricio y Liber Martin. 2 0 1 4 . Origen, evolucion y estado actual del derecho al agua en America latina. Revista Biod erecho.es 1 , Centro de Estudios en Biod erecho, ética y salud , Universidad de Murcia. http://www.jornada.unam.mx/ultimas/2 0 1 6 /1 2 /2 1 ; http://www.eluniversal.com. mx/articulo/estados/2 0 1 7 /0 1 /1 9 / C H A P T E R X II I ENVIRONMENTAL AND TRADITIONAL INDIGENOUS CULTURE PROTECTION: THE COLOMBIAN CASE Gloria Amparo Rod ríguez SUMMARY: 1 . Introduction. –2 . Protection of indigenous territories. –3 . Other perceptions of nature. –4 . Indigenous territory for cultural and environmental protection. –4 .1 . The Pacific region. –4 .2 . The Amazon region. –5 . Violation of the right to territory. –6 . Conclusions. 1 . Introd uction Pero seguimos con la lucha, porque reclamar el territorio es reclamar a nuestra Mad re Tierra (Abadio Green 2 0 0 2 , 1 8 ) Colombia, as is evident from the General Census (2 0 0 5 ), has a population of 4 1 ,4 6 8 ,3 8 4 inhabitants. Far from quantifying homogeneity, this figure covers a wide ethnic and cultural diversity, in which indigenous people are represented. The indigenous culture shows itself through the existence of 1 0 2 ancestral peoples, with a historical and cultural heritage, whose population according to the Presidency of the Republic, amounts to 1 ,3 9 2 ,6 2 3 people (Colombia, Presidency, 2 0 1 2 -a, 5 ), with 6 5 languages (Sánchez-Botero, 1 9 9 9 , 3 8 1 ), and different degrees of vitality. Therefore, actions to strengthen their oral and written communication are developing, involving participation of the peoples and keeping intact their life plan processes1 and ethnic development. (Colombia, DNP, 2 0 1 5 , 3 2 1 ) These ancestral cultures are present in 2 7 out of the 3 2 provinces of the country. They are located in the areas with most biological diversity Indigenous life plans “are nothing more than how we manage our lands, the strategies to safeguard them and continue to live there. They are also the way in which we develop our ability to achieve some minimum humanitarian agreements to continue to live in our communities, so that death does not surprise us through different actors who enter our territories by threatening the tranquillity of our people”. (Green 2 0 0 2 : 1 8 ). 1 278 GLORIA AMPARO RODRÍGUEZ and protection, where the indigenous peoples of Colombia evolve their life, their culture and economy and their typical forms of development arise. There, they have also had a harmonious and respectful relationship with the habitat and its resources. Therefore, the ecosystems where they live are the most protected in the country. In this context, the indigenous peoples exercise their right to own, develop, control and use their lands; because without territory, there is nowhere to express their culture2 , everything fades away and loses its strength. This is the place where indigenous peoples can exercise their knowledge and rights according to their traditions; “It is the place of ancestors and home of dreams or owners of plants and animals” (Colombia, DNP, 1 9 9 7 , 2 0 7 ). It also constitutes a physical space under their influence and political control. In order that the recognition of ethnic and cultural diversity is effective, the Political Constitution of Colombia establishes the right to land, to self-government, and the right of indigenous peoples to design their policies, plans and programs of economic and social development, as indicated by Román-Muñoz (2 0 0 9 , 1 8 7 -1 9 2 ); in this connection, control of their territories entails interest in strengthening their ethnic and cultural identity, strengthening their autonomy and self-management, stating projects of organization involving them, and claiming collective ownership. Therefore, it can be said that, by ensuring land to indigenous peoples, on the one hand, not only can the environment and the natural resources be protected, but, above all, respect for diversity and cultural identity, physical integrity, social, economic and cultural development of individuals, communities and, in a word, of the peoples who inhabit them is guaranteed. Thus, the guarantee of the territory favours the wellbeing and improves the quality of life of the very peoples who live there, and contributes to the exercise of their rights and to community participation. This guarantee also promotes social integrity, cultural, biodiversity conservation and protection and traditional knowledge, and use, maintenance and preservation of natural, genetic and strategic resources, in accordance with traditional practices of these populations. In this way, effective enjoyment of rights on land makes it possible to develop actions and major economic and social investment projects for the territorial entity, in line with the plans of life of indigenous peoples. Consequently, it is necessary to take into account the fact that indigenous peoples have a right to access and use the existing natural resources in their territories, and that the possible establishment of restrictions on For indigenous peoples the territory is an area where they can recreate culture, thought and ancestral knowledge, and it is the space where the indigenous community understands and knows that the role they have in this world is to defend the Mother Earth (Green 2 0 0 2 : 1 8 ). 2 XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 279 their access should correspond to the perceptions, interests and way of management of the life of the populations involved. Based on this consideration, the Political Constitution of Colombia established that exploitation of natural resources in indigenous territories should take place without weakening these communities (art. 3 3 0 ). On this issue, the Constitutional Court has also stated that “exploitation of natural resources in indigenous territories must be compatible with the protection that the State must grant to the social, cultural and economic life of the indigenous communities, ensuring that integrity which is a fundamental right for the community so that they can connect to their existence as a human group and a culture” (CCC, Judgment of Unification SU-0 3 9 /9 7 ).Taking into account the above arguments, this paper shows the perception that indigenous peoples have of land and use of natural resources. This is the partial result of the research project “Cátedra Viva Intercultural”, which aims to satisfy research related to ethnic communities in Colombia; it aims to recognize, through teaching, research and extension, the ethnic and cultural diversity of the Colombian nation, to promote respect for diversity in the construction of a plural national identity and ensure peaceful coexistence and respect for the human rights of these communities. The methodological strategy aims to achieve the proposed objectives, as with the analysis of the legislation, case law and doctrine in relation to the ethnic communities and study of their problems. For this, it carries out research with field work, social and legal support to communities and the detailed study of representative cases. On this basis, this paper is the partial result of the study carried out in the framework of the aforementioned project, in the part concerning the territory, the perceptions that drive indigenous peoples, provisions and law both at national and international level, and corresponds to the conference “La tutela del medio ambiente y las culturas indígenas tradicionales” which took place at the Università degli Studi di Palermo (Italy)3 . The paper is divided into four parts. The first part is concerned with the rights exercised by indigenous peoples in the use and management of their territories as a preferred way to protect their culture. The second part shows the different perceptions that indigenous peoples have in relation to use of resources and territory. In the third part, there are two representative cases in relation to the protection of ecosystems of great importance which have been protected over time by the indigenous populations. Finally, the fourth part presents the damage occurring in land rights, caused by deterioration of nature. Some conclusions on the research carried out and recommendations are made to face the proposed issues. The conference was held within the Summer School ”Human rights, environment and economic development“ organized by the Department of Juridical, Society and Sport Sciences at the University of Palermo, between 1 0 and 1 7 June 2 0 1 4 . 3 280 GLORIA AMPARO RODRÍGUEZ 2 . Protection of ind igenous territories Referring to the importance of land for indigenous peoples, it is stated that “life arises and develops through the goodness of Mother Earth, and without it our future is not possible. Defending and protecting life is to defend and protect our territories and the harmonic relationships that we build on them” (ONIC, 2 0 0 7 ). Not surprisingly for indigenous peoples “territory is a space where it is possible to recreate culture, thought and ancestral knowledge, and is the space where the indigenous community understands and knows that its role in this world is the defence of our Mother Earth. Around it we have to unify these criteria as an indigenous movement, to maintain the diversity of the planet earth”. (Fundación Hemera - OIA - DGR, 2 0 0 2 , 1 8 ). In line with this view, Convention 1 6 9 of the International Labor Organization –ILO4 –shows how to respect the special importance that consideration for the cultures and spiritual values of indigenous peoples has (Bondía-Garcia 2 0 0 9 , 2 0 1 ). It covers their relationship with the lands or territories they occupy or use, and in particular the collective aspects of this relation. To this end, there must be recognition of the right of ownership and possession of lands. In certain cases, measures should be adopted to safeguard the right to use lands that are not occupied exclusively by them, but to which they have traditionally had access for their subsistence and traditional activities (Article 1 3 and 1 4 of ILO Convention 1 6 9 ). In order to put these rights into operation, indigenous peoples speak of self-government, which provides for the exercise of their authority within the territories where they have historically lived, requiring the exercise of autonomy, the management of natural resources and the implementation of their forms of government and community organization (Art. 2 4 6 of the Political Constitution of 1 9 9 1 ). In this regard, the United Nations Declaration on the Rights of Indigenous Peoples establishes in art. 2 6 that they “have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. In addition, they have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. Therefore, States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned”. ILO Convention 1 6 9 on Indigenous and Tribal Peoples in Independent Countries, ratified by Law 2 1 of 1 9 9 1 . 4 XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 281 In this sense, in the domestic legal system it is to be noted that pursuant to art. 6 3 of the Political Constitution of 1 9 9 1 , the communal lands of indigenous peoples are considered inalienable, indefeasible and undistrainable. The reserve is the legal entity which represents the indigenous territories that are entitled to collective property, characterized by management and self-government exercised by the community authorities. It is a legal and socio-political arrangement of a special nature, which guarantees the management of indigenous territories and the internal life of these communities5 . Similarly, indigenous peoples have the right to access and use the existing natural resources in their territories. Thus, the imposition of restrictions on their access should respond to their own perceptions, interests and ways of management. According to art. 1 5 of the ILO Convention 1 6 9 , “The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources”. Therefore, the exercise of the right to the territory allows indigenous access, use and collective management of goods and services which make Mother Earth fit, and the control of the social, cultural and economic factors occurring within this physical space, characterized by the cultural influence and political control of indigenous peoples where the close relationship they have with their habitat is evident. 3 . Other perceptions of nature The general outline and traditional practices have led indigenous peoples to take care of their territories and protect the natural resources in them. This appears clear in their plans for life6 , where the territorial issue is predominant. In communities of indigenous peoples, the firm belief in recovering their lands is profound, in order to restore the balance and harmony that have been lost due to land expropriation, as part of project implementation and the use of resources7 . This conviction must be placed in the context of other world-view forms and the various challenges to achieving decent living conditions. Therefore, we are concerned with the various ways of thinking about See Law 8 9 of 1 8 9 0 , Law 1 6 0 of 1 9 9 4 , among others. The plans of life are the expression of the fundamental interests of indigenous peoples, where they display their future, about ethnic and cultural protection, their idea of territory and, in general, what is understood as development, but included in their world-view. 7 This situation has also led to violation of the human rights of these communities even presenting dispersion, death and territorial expropriation processes. 5 6 282 GLORIA AMPARO RODRÍGUEZ development, which have a direct similarity with the world-view and way of understanding the relationship between human beings and environment, known as “Buen Vivir or Vivir Bien” (Barbero 2 0 1 5 , 1 0 6 1 1 0 ) and that since the end of the twentieth century have been created and claimed especially by indigenous Bolivians and Ecuadorians, starting from their world-view and culture. Palacín Quispe (2 0 1 0 , 8 -1 0 ) assures us that indigenous peoples have principles based on the laws of nature, that they are peoples who live in communities, where they practice reciprocity, duality and complementarity. They have a distributive economy, as the indigenous peoples do not save but distribute wealth. This is what is called “Buen vivir”, that is their proposal for the world; they consider it a concept that is not only permanently evolving, since each people makes its contribution to its construction, but also necessary for the balance between culture, nature and harmonious coexistence (Huanacuni Mamani 2 0 1 0 , 8 -1 0 ). The community paradigm of the life culture to ‘live well’ is supported by a way of life based on the daily practice of respect, harmony and balance with everything existing, understanding that everything is interconnected and interdependent. Thus, indigenous peoples propose a discussion on the development model8 , of how man should live from now on, because the global market, economic growth, corporatism and consumerism are the product of a western paradigm and they are, to varying degrees, the causes of the serious social economic and political world crisis. They believe that the current models of development “are coming to, if they have not already arrived at, a limit, and therefore, the descent begins. It is not just an economic, social, political or cultural issue. The progress and development promises which drove all humanity, have already shown fully their limits and devastating effects, especially in highly developed countries such as the European ones, where today the priority is no longer development but how to reconvert all the damage caused”. In their words, the economy, in terms of the cosmovision of ancient indigenous peoples, is the way in which human beings and communities decide to relate to all life forms: animals, insects, plants, mountain, rivers, forests, air, etc., which are not “resources” but living beings, and deserve respect, in virtue of balance and complementarity, which generate the distribution and redistribution, according to the most urgent needs (Huanacuni Mamani 2 0 1 0 , 2 7 and 5 7 -5 9 ). In light of these perceptions and interests of indigenous peoples, art. 2 9 of the United Nations Declaration on the Rights of Indigenous Peoples states that they have the right to the conservation and protection of the Indigenous peoples assure us that: “It is not that we are against development, but we are against the procedures and methods that are used in the name of development” (Green 2 0 0 2 : 3 0 ). 8 XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 283 environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. Therefore, it is important to understand that we must recognize and respect the sacred value that the territory has for indigenous peoples, as it guarantees the respect of their rights and also contributes to the protection of natural resources existing in them, even though they are permanently threatened by problems of a different order, through interests of public or private bodies that seek to exploit their resources or control their lands and territories. So these other perceptions of nature are a historic opportunity for the ancestral knowledge of indigenous peoples, such as devotion to mother nature, knowledge of sustainable development, traditional medicine, their various forms of ceremonies and rituals around nature, to be a point and a contribution for Colombians. These peoples claim that if we really want planet earth to continue to exist and our natural resources to be a heritage for future generations, we must start from this reality, from the bowels of Mother Earth (Green 2 0 0 2 , 1 5 ) 4 . Ind igenous territory for cultural and environmental protection Since time immemorial the indigenous peoples have maintained a special relationship with the land that is their way of life and livelihood, as well as the foundation of their existence as a people. The right to own, occupy and use land concerns the idea that indigenous peoples have of themselves and, in general, of the local community, the tribe, the indigenous nation or group on which this right is conferred. These communities keep historical and spiritual links with their homelands, geographical areas where the society prospers and where culture can be passed from generation to generation (Stavenhagen 2 0 0 2 )9 . As noted previously, the exercise of the rights to the territory allows indigenous peoples to access their natural resources, and to control the social, cultural, political and economic factors that occur within this area. This right involves possession, development, control and use of the lands and territories, which is of the utmost importance to them. Therefore, the Constitutional Court emphasizes the special relationship between the communities and indigenous peoples with the territories they occupy, not only as the main means of subsistence, but as an integral part of the world view and religion of aboriginal peoples. Consequently, this implies recognition of the right of ownership over the traditionally occupied In this connection, see the report submitted by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr Rodolfo Stavenhagen, to the Commission on Human Rights during the 5 0 th session (2 0 0 2 ). 9 284 GLORIA AMPARO RODRÍGUEZ territories, which are their habitat. It is also to be noted that the Constitutional Court has broadened the concept of territory, not limiting it to the geographic location of a community or indigenous reserve, but associating it to the concept of the community cultural environment (CCC, T-1 1 0 5 /0 8 y T-2 3 5 / 1 1 ). Aware of the contribution of indigenous peoples to environment and natural resource protection, and of respect for traditions and customs to protect nature, regulations to recognize special rights related to the care of the areas they inhabit traditionally have been issued. As part of their harmonious relationship with the environment, indigenous peoples consider that the conservation and protection of biodiversity should be ensured through use, maintenance and recovery of natural, genetic and strategic resources based on their traditional practices. Evidently, for the indigenous peoples, the territory has always been one of the fundamental values of their vision of the world, and building their future, for which they have historically led their battles of resistance for cultural and territorial survival. For them, this right is part of a set of values that gives them identity and forms the basis for respect for special collective rights, and the development of alternatives and their organizational structures as indigenous peoples (ONIC, 2 0 0 7 , 1 2 - 3 8 ). As a consequence of the ancestral environment protection engagement, today, where indigenous peoples live, there is the greatest wealth of their country. “In these extraordinary ecological conditions, indigenous peoples took shape over thousands of years. Their eco-cultural mentality was developed in the process of their vital activity, in the balance between traditional culture and natural ecosystems. Spontaneous empirical knowledge has developed into rules of conduct for the rational enjoyment of nature, for its maintenance and reproduction” (Almeidaet al. 2005, 39). For these reasons, the indigenous territories play a key role in the task of conserving biodiversity, and especially in the protection of our genetic resources. This is the result of the forms of relationship between these cultures and nature that have occurred through the customs and traditions that guarantee permanence in time. In an attempt to illustrate this situation, we will present two specific cases where it is possible to see how, through time, in the context of environmental protection, the use of the territory and, particularly, natural resources has made the indigenous peoples who live in the regions of the Colombian Pacific and Amazonian fulfil themselves. It has made it possible to have two ecosystems of great value both for our country and world-wide. 4 .1 The Pacific region Much of the important inheritance of protection by the indigenous peoples is located in one of the regions of greatest natural wealth in the country: the Pacific is also home to the Chocó bio-geographic complex XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 285 where black and indigenous communities live1 0 . They are responsible for the legal mandate to perform an ecological and social function through the titled collective territories. It is home to 2 6 1 indigenous reserves with an area of approximately 1 ,9 0 4 ,8 2 2 hectares. The biodiversity and ethnic diversity peculiar to the region are, in turn, the challenges for their development and territorial organization, given the need to tie the life plans and ethnic development with other instruments of territorial and environmental organization and municipal development plans, plans for the management of national parks and plans, among others, under municipal law (Colombia, DNP 2 0 1 5 , 6 8 9 ). The Colombian Pacific is a region characterized by immense biodiversity, abundance of water, the convergence of ethnic groups and privileged residents in the Pacific basin1 1 . These attributes confer a productive environmental and ethnic social potential on the region, still unexploited. However, in this area there is the highest rate of multidimensional poverty in the country (3 7 .6 %). The 2 ,4 6 8 ,2 4 3 hectares of protected areas integrated into the National System of Protected Areas (Sinap) most relevant to indigenous territories are emblematic of this important natural heritage of the region. Despite the geographical, environmental and cultural advantages, the region recorded significant levels of inequality and social backwardness compared to the rest of the country (Colombia, DNP 2 0 1 5 , 6 1 7 -6 8 7 ). The land in the Pacific region is a mosaic of fluvial-marine plans, flood plains, narrow valleys, slopes and steep mountains. It is also characterized by one of the rainiest climates in the world and by precipitation that even reaches 1 3 ,0 0 0 mm per year. The high rainfall, the tropical conditions and its isolation (separation of the Amazon basin in the Andes) contribute to making the Chocó biogeography region one of the most diversified in the world: it has 9 ,0 0 0 species of vascular plants, 2 0 0 mammals, 6 0 0 birds, 1 0 0 reptiles and 1 2 0 amphibians. In the region there is also a high level of endemism, and nearly 2 5 % of the species of plants and animals registered in Colombia are in it. This area is mainly occupied by indigenous peoples and Afro ones who practise responsible action with regards to nature. This is perhaps the main factor for the The Indigenous peoples of the Pacific region are the Coconuco, the Embera, the Eperara siapidara, the Guambiano, the Guanacas, the Inga, the Nasa, Totoro, the Yanakona in Cauca; the Awa, the Embera, the Eperara siapidara, the Kofan, Nariño y Embera, the Embera Chami, the Nasa, and the Wounann in the Cacua Valley. 11 In environmental matters, the Colombian Pacific has areas of forest reserves and national parks. Eco-strategic regions have also been identified such as the Colombian Massif, where the rivers provide 7 0 % of the country’s water requirements. It also has marine and mangrove ecosystems, and 3 8 protected areas such as the islands of Gorgona, Malpelo and Gorgonilla, known worldwide as a breeding habitat of marine mammals such as dolphins and humpback whales (Colombia, DNP 2 0 1 5 , 6 8 8 ). In these places different indigenous peoples of Colombia live in ancestral and sustainable forms. 10 286 GLORIA AMPARO RODRÍGUEZ conservation of the ecosystems that form it, contain an abundance of biodiversity, and are considered strategic (Colombia, IIAP 2 0 1 1 , 1 3 ). Among the production activities carried out by indigenous groups that still exist, there are the following: hunting, fishing, cultivation of some plant species, breeding of domestic animals and harvesting of plants. From the traditional point of view, the most important activity, even if it does not offer much food today in most cases, is hunting. This is carried out both individually and collectively, according to the prey sought (Colombia IIAP, 2 0 1 1 , 4 6 ). In this way, over time, the indigenous peoples have survived and carried out their traditional practices, and because of that, today, we have a territory with cultural and environmental protection of great importance for the country. 4 .2 The Amazon region Another important region of Colombia is the Amazon region with an area of 4 8 3 ,1 6 4 km2 1 2 , which contains great biodiversity. The Amazon region includes two of the largest reservoirs in the world, those of the river Amazon and the river Orinoco. In the area there are numerous rivers, although in general the soils are very poor chemically and physically very exposed to deterioration. The organic layer is a thin layer of dead leaves and plant residues in varying degrees of decomposition. However, it constitutes the most important source of nutrients for plants, and acts as a protective layer of the soil against erosive agents and processes. In the Amazon region there is the only large rainforest biome where there are 6 7 4 species of birds, 1 5 8 amphibians, 7 5 % (1 1 8 species) of which are endemic, 1 9 5 reptiles and one endemic species, 2 ,1 2 1 mammals and a total of 7 5 3 species of fish (Colombia, Sinchi Institute, SIAT-AC www.sinchi.gov.co). The Colombian Amazon occupies 4 2 .4 2 % of the country’s surface area and 6 .2 1 % of the Amazon bio-region with 1 4 natural national parks, several national nature reserves and a sanctuary of flora and medicinal plants. In Amazonian Colombia there are 9 6 0 ,2 3 9 inhabitants corresponding to 2 .3 % of the total national population and the indigenous population is equal to 9 % of the region’s total population (8 6 ,4 1 7 inhabitants). According to the Organization of Indigenous Peoples of the Amazon of Colombia (OPIAC), in the country there are 5 6 Amazonian Indigenous Peoples, in 1 6 2 indigenous reserves in an area of 2 4 ,6 9 9 ,4 1 4 hectares. As can be seen from the examples presented, indigenous intervention in and use of territories provide environmental and cultural protection, Its surface is equal to 5 .7 6 % of Greater Amazonia and 4 1 .3 1 % of the mainland of Colombia (Sinchi Institute). 12 XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 287 and they themselves have stated: “we want to continue to contribute with our organizational experience and the permanent defence of our territory to making life possible and allowing our generations to continue to tell the story of our people and the memory of the old men always follow like the eye of the eagle: past, present and future” (Green 2 0 0 2 , 1 8 ). 5 . Violation of the right to territory Currently the situation of the indigenous peoples in Colombia is very complex. The Constitutional Court (CCC, Decree 0 0 4 of 2 0 0 9 ) has identified and warned of the danger of cultural or physical extermination to which these people are exposed due to internal armed conflict. In this scenario they have been victims of serious violations of their fundamental individual and collective rights, and of international humanitarian law, which has contributed to their forced individual or collective displacement. According to Judgment 0 0 4 issued by the Court, some of the indigenous peoples of Colombia are at risk of extinction; they are displaced and/or confined; they show a progressive decline in their population; and they are affected by illicit crops in their territories, where the presence of the state is weak. Added to the above is the fact that in the country several mining, road, biofuel and hydrocarbon projects are scheduled and running, which threaten and generate conflicts with indigenous peoples. In response to this situation, especially on the issue of displacement due to armed conflict, the Constitutional Court has ordered that plans and programmes be implemented to guarantee the rights of indigenous peoples and conservation plans for the 3 7 peoples affected by this scourge will indeed be planned and implemented. Among the territorial and socio-economic processes that affect indigenous peoples, the Constitutional Court emphasizes the serious impact on ethnic integrity of legitimate or illegitimate economic activities. It reports that of particular concern, in this regard, is the confirmed and still growing presence of illicit crops –mainly cocaine –and the development in their territory of external agents, various activities related to drug trafficking, and the development of legitimate activities of exploitation of natural resources, in irregular ways, for economic agents of the private sector or for illegal armed groups1 3 . The Court reports that these activities often affect sacred sites, resulting in a destructive impact on their cultural structures, and highlights that it was detected that high rates of deforestation and environmental damage are caused (CCC, Decree 0 0 4 of 2 0 0 9 ). Such as indiscriminate deforestation, cultivation and exploitation of agro-industrial monocultures, illegal mining and related activities. 13 288 GLORIA AMPARO RODRÍGUEZ In this regard it should be noted that many indigenous groups have denounced violent strategies by armed officers with vested interests in the direct realization of mega agricultural projects and exploitation of natural resources, or in support of certain enterprises and economic agents who develop these projects, and with which they have joined forces to reap the benefits of such activities. Worryingly the Court registers the fact that apparently some economic actors have allied with the irregular armed actors to generate, within indigenous communities, violent acts to remove or relocate the natives from their ancestral territories, smoothing the way for the implementation of productive projects. Essentially, the result is the existence of vast commercial interests extending into the natural resources of their territories. The Court has also stated that in some places in the country the association of the actors of the armed conflict with the economic interest groups is clear. This association is one of the main causes of forced displacement of these peoples (CCC, Decree 004 of 2009). Evidently, there are great interests of domestic and foreign enterprises in the exploitation of natural resources located in indigenous territories, which makes the rights of these peoples vulnerable. The state authorities are responsible for protecting constitutional and legal rights like the ethnic, cultural, social and economic integrity of indigenous peoples, since the situation they are currently living in is precarious, as indicated by the Declaration of the United Nations itself. Concern is raised by the fact that indigenous peoples have suffered from historic injustices as a result, among other things, of colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with the their needs and interests. Economic projects, over time and specifically in recent years, have had a negative impact on indigenous cultures. The indigenous peoples permanently demand respect for their fundamental rights, such as in particular, the right to autonomy, to their values and social practices, religious and cultural rights; the right to the territory, through the recognition of the right of ownership and possession of lands traditionally occupied; cultural integrity; the right to their rules and institutions; the right to participation and prior consultation with their leaders, communities, institutions and representative organizations, with the proper procedures, as often as measures that could affect them are provided; to their development in accordance with their customs and traditions and the right to use their natural resources (Rodríguez 2 0 0 8 , 5 8 ). Most of these rights have been recognized in various provisions, not only domestically but also internationally1 4 , but their implementation has been contentious in practice. These rights are enshrined in particular in the Political Constitution of Colombia and the ILO Convention 1 6 9 (Law 2 1 of 1 9 9 1 ), among others. 14 XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 289 Accepting these paradigms implies that the state must design and implement, in consultation and coordination with indigenous authorities, programmes aimed at the protection of their territories and the other rights, the enjoyment of which is connected to it, including its existence, as culturally different peoples. Likewise, in front of the intervention of the effects they have had in their ways of living, strategies to redeem the traditional practices of preserving ancestral relating to the environmental management of natural resources should be included. So, it is costly to enforce the sub-constitutional rule that “ exploitation of natural resources in indigenous territories must be compatible with the protection that the state has to offer to the social, cultural and economic integrity of the indigenous communities. This integrity outlines a fundamental right for the community to be connected to their livelihood as human group and as a culture” (CCC, Judgment SU-0 3 9 /9 7 ). In this respect, a way to recognize and support the work of conservation of indigenous peoples would be to co-finance community initiatives for the realization of plans and productive projects of reforestation, natural regeneration of forests, basins and environmental improvement when their territories are affected by agents and different projects. In addition, initiatives of environmental planning of the territory should be promoted, starting from knowledge of systems of the indigenous plans of life, as basic tools for environmental management. To face the risks of external agents who interfere with the effective enjoyment of land rights, it is important to carry out studies and take preventive measures to avoid them being affected by projects that might put them and the ecosystems protected since ancient times in situations of risk or threat. In this context, at the request and with the approval of their organizations, it is possible to support the restoration and conservation programmes. In the same way, it is necessary to contribute to the protection of sacred sites and to establish concerted actions for the defence of the natural and cultural heritage existing within indigenous territories. It is for the Colombian state to protect the territories of indigenous peoples against the activities that jeopardize their lives, cultures and territories. For this reason it is essential to recognize the traditional and direct dependence on natural resources and ecosystems, as essential to their cultural and physical well-being. Also, we should positively assess their knowledge and management practices of traditional resources and establish and strengthen their active participation in the formulation of policies, laws and programmes related to them, and, in general, in every decision proposed in this senses. So, true participation of indigenous peoples in the political, economic, social and environmental sustainability of the country becomes real, and the contributions that these peoples have made to the protection of the cultural and natural heritage of their nation is recognized and made visible. Considering the above, it is inevitable to say that we need to have a comprehensive policy for the protection of indigenous peoples. It is 290 GLORIA AMPARO RODRÍGUEZ therefore important to implement mechanisms of cultural and environmental strengthening, of systems of ancestral knowledge and selfgovernment, and of consolidation of the traditional territories of indigenous peoples, which is consistent with national and international regulatory standards. This is the sense of duty of the state and of every person, in ensuring the protection of ethnic and cultural nation of Colombia, over the territory, which also means the protection of cultural and natural resources for all Colombians. 6 . Conclusions Reality shows that the populations most vulnerable to conflicts are those with least economic resources. These usually coincide, in the case of countries where there is great natural and/or cultural richness, with different ethnic groups, such as indigenous peoples, who live in these areas. In these circumstances, and in the case of indigenous peoples, the above problems affect not only the territories that traditionally they have protected, but also their way of life and their rights. The Colombian legislator was interested in the issue of rules enshrining the rights of indigenous people, but this has not guaranteed the disappearance of the difficulties related to the environment. On the contrary, because of the development policies of the country and unsustainable extraction of natural resources, which would require sustainability of the development model regarding extraction of natural resources, the difficulties have increased. The identification and management of conflicts in the territories in which the indigenous peoples are claiming and exercising different ways of life should be adopted taking into account the actual specific cultural conditions in front of the heterogeneity of views on the rest of society. Given the existence of distinct communities, it is essential to encourage the work of handling this class of comparisons, taking into account their proposals, in order to avoid not only the deterioration of territories, but also the possible consequences on their social and cultural fabric. In short, it is important to understand that the relationship between these peoples and their territories is vital, so that these situations should be viewed from an integral perspective, that is, from a holistic view that recognizes their value as a source of life, as it has a fundamental significance for social, cultural, spiritual, environmental, economic and political survival. In addition, society must know that the use and management of natural resources by indigenous peoples can contribute to solving world problems related to climate changes, biodiversity loss, falling of bodies of waters, and pollution, among others. Consequently, the success of this operation depends on the territorial guarantees that indigenous peoples may have, because in this way we contribute to environmental protection and also ensure sustainability. XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 291 In this context, the joint work of the environmental authorities and the indigenous authorities constitutes a strategy to prevent and deal with conflicts involving natural resources and the environment. So, to promote a dialogue or a concrete work programme in this field, the institutional strengthening and the inclusion of indigenous peoples and of the other parties concerned is necessary, for the overall, democratic and participatory coordination of policies and decisions. It is essential to take into account that different agents play an important role in the formulation and implementation of policies and environmental decisions to prevent conflicts. So, we have to work in this field by establishing not only responsibilities but also monitoring, disclosure and control mechanisms. In this context, we note that the fundamental condition for the existence of an understanding and cooperation between indigenous peoples and the development proposed by the state through the exploitation of natural resources and the implementation of projects in their territories is that the rights and interests of these peoples are fully recognized and respected, and prevail over any decision or form of protection. In this regard, it is important to recognize the contribution that indigenous people have made to environmental protection in their country. It is also necessary to know the main problems of use and occupation of indigenous territories, in order to implement a programme aimed at sustainable development that facilitates the administration, management and concerted planning of investment programmes in their territories, tending to the welfare of the members of their community. Thus, knowledge, experiences and management practices on the part of indigenous peoples should be considered as the basis for joint planning of the management of the areas where they live in one way or another. In this sense, it is important to consider several aspects, for example, what kind of development they want, above all, because for these cultures development is not measured by the economic aspect. A key element of understanding and protection is in the plans of life which are the expression of their fundamental interests, where they display their future, the environment, ethnic and cultural protection, their idea of the territory and, in general, what is development, but understood according to their world view. Thus, the Colombians face many challenges that start from respect for other visions of development (buen vivir or vivir bien) and for guarantees of collective ownership of the territories. The challenges affecting all Colombians with regard to indigenous peoples imply ensuring the effectiveness of their rights, the recognition to the contribution they have made to the nation with their customs, traditional knowledge and appropriate use of natural resources and territories. Consequently, a perspective based on human rights, which allows starting the political debate for the protection of indigenous peoples and their territories, as well as establishing clear mechanisms and the sustained efforts to create conditions for a dignified life and conflict prevention, are unavoidable tasks to achieve peace in Colombia. 292 GLORIA AMPARO RODRÍGUEZ Indeed, the search for such arrangements or agreements is part of a broader process of building a new paradigm whose definitions are transformed from unilateral actions of the state institutions into results and tools of a social agreement that seek to improve the management of lands, territories and natural resources, designed to achieve the collective benefit and respect for the cultural identity of indigenous peoples. This, we insist, is essential to achieve peace for all Colombians, a different peace, respectful of diversity and the environment. Bibliography Almeida, I., N. Arrobo Rodas, and J. Ojeda Segovia. 2 0 0 5 . Autonomía Ind ígena frente al Estad o Nación y a la Globalización Neoliberal. Quito: Editorial Abya Yala. Barbero, C. 2 0 1 5 . Il “Buen Vivir”, un cambiamento di paradigma. In La terra che calpesto, per una nuova alleanza con la nostra sfera esistenziale e materiale, ed. M. G. Lucia & P. Lazzarini. Roma: FrancoAngeli. Bondía-García, D. 2 0 0 9 . De lo global a lo local o de lo local a lo global: convergencias y divergencias entre el derecho internacional público y el derecho propio indígena: especial referencia a las comunidades indígenas colombianas. In Víctimas invisibles, conflicto armad o y resistencia civil en Colombia, ed. M. Muñoz & D. Bondía-García, 1 9 1 -2 8 6 . Barcelona: Huygens Constitutional Court. Judgment SU-0 3 9 de 1 9 9 7 . (M. P. Antonio Barrera Carbonell). Colombia. Constitutional Court. Judgment T-1 1 0 5 de 2 0 0 8 . (M. P. Humberto Antonio Sierra Porto). Colombia. Constitutional Court. Judgment T-2 3 5 de 2 0 1 1 . (M. P. Luis Ernesto Vargas Silva). Colombia. Constitutional Court. Auto 0 0 4 de 2 0 0 9 . (M.P. Manuel José Cepeda Espinosa). DNP (Departamento Nacional de Planeación). 1 9 9 7 . Los Pueblos ind ígenas d e Colombia, ed. Raúl Arango and Enrique Sánchez. Bogotà: Tercer Mundo Editores. DNP (Departamento Nacional de Planeación). 2 0 1 5 . Bases d el Plan Nacional d e Desarrollo. Fundación Hemera –OIA –DGR. 2 0 0 2 . Para que la casa no se caiga. Fundación Hemera, Bogotá. Green. Abadio. 2 0 0 2 . El aporte de los pueblos indígenas a un país diverso. In Para que la casa no caiga. Bogotá: Fundación Hemera, Paz Televisión, OIA, Dirección para la Reinserción. Huanacuni Mamani, Fernando. 2 0 1 0 . Buen Vivir / Vivir Bien. Filosofía, políticas, estrategias y experiencias regionales and inas. Lima: Coordinadora Andina de Organizaciones Indígenas. IIAP (Instituto de Investigaciones Ambientales del Pacífico). 2 0 1 1 . Aportes al conocimiento d e los ecosistemas estratégicos y las especies d e interés especial d el Chocó Biogeográfico. Santiago de Cali. Instituto Amazónico de Investigaciones Científicas Sinchi. Sistema d e Información Ambiental Territorial d e la Amazonia Colombiana. http://siatac.co/web/guest/re gion/referencia. Accessed June 2 0 1 5 . Instituto Sinchi, SIAT-AC www.sinchi.gov.co. Accessed 1 June 2 0 1 5 . XIII. Environmental and Trad itional Ind igenous Culture Protection: the Colombian Case 293 ONIC (Organización Nacional de Pueblos Indígenas de Colombia). 2 0 0 7 . Derechos d e los pueblos ind ígenas y sistemas d e jurisd icción propia. Bogotá: Organización Nacional Indígena de Colombia ONIC. ONIC (Organización Nacional de Pueblos Indígenas de Colombia). 2 0 0 7 . Mandato General. VII Congreso de los pueblos indígenas de la Organización Nacional Indígena de Colombia –ONIC. Tolima: Ibagué. Presidencia de Colombia. 2 0 1 2 ª. Colección Cuad ernos Legislación y Pueblos Ind ígenas d e Colombia No. 2. Programa Presid encial para la Formulación d e Estrategias y Acciones para el Desarrollo Integral d e los Pueblos Ind ígenas d e Colombia. Presidencia de la República. 2 0 1 2 b. Tejiend o el canasto d e la vid a. Bogotá: Programa Presidencial para la Formulación de Estrategias y Acciones para el Desarrollo Integral de los Pueblos Indígenas de Colombia. United Nations. 2 0 0 2 . Informe d el Relator Especial sobre la situación d e los d erechos humanos y las libertad es fund amentales d e los ind ígenas, Sr. Rod olfo Stavenhagen, Comisión de Derechos Humanos. 5 0 º período de sesiones. Consultado el 1 º de febrero de 2 0 1 3 , en http://www.cinu.org.mx/prensa/especiales/2 0 0 8 / Indigenas/libro%2 0 pdf/Libro%2 0 Stavenhagen%2 0 UNESCO.pdf. Acceso 3 0 de mayo de 2 0 1 5 . United Nations. 2 0 0 7 .Declaración d e las Naciones Unid as sobre los d erechos d e los pueblos ind ígenas. Asamblea General. Sexagésimo primer período de sesiones. A/RES/6 1 /2 9 5 . New York, September 2 0 0 7 . Palacín Quispe, M. 2 0 1 0 . Prólogo. In Buen Vivir / Vivir Bien. Filosofía, políticas, estrategias y experiencias regionales and inas, ed . Huanacuni Mamani, F. Bolivia: Instituto Internacional de Integración. Rodríguez, G. A. 2 0 0 8 . La autonomía y los conflicto ambientales en territorios indígenas. In La tierra contra la muerte. Conflictos territoriales d e los pueblos ind ígenas en Colombia. Observatorio Indígena de Políticas Públicas de Desarrollo y Derechos Étnicos CECOIN, 5 7 -7 8 . Rodríguez, G. A. 2 0 1 0 . La realidad de la autonomía de los territorios colectivos en Colombia. In El principio constitucional d e autonomía territorial. Realid ad y experiencias comparad as, Universidad del Rosario, 3 0 5 -3 2 1 . Román-Muñoz, M. 2 0 0 9 . Resistencia civil: los indígenas como nuevos sujetos políticos. In Víctimas invisibles, conflicto armad o y resistencia civil en Colombia, ed. M. Muñoz & D. Bondía-García, 1 7 5 -1 9 0 . Barcelona: Huygens Sánchez-Botero, E. 1 9 9 9 . La tutela como medio de transformación de las relaciones Estado-Pueblos Indígenas en Colombia. (pp. 3 8 1 -4 1 2 ). In El reto d e la d iversid ad : pueblos ind ígenas y reforma d el estad o en América Latina, ed. W. Assies, G. Van der Haar & A. Hoekema. Zamora-Michoacán: El Colegio de Michoacán. Stavenhagen, R. 2 0 0 0 . Conflictos étnicos y Estad o nacional. México: Siglo XXI Editores. SECTION 4 ECONOMY AND THE ENVIRONMENT CHAPTER XIV THE INALIENABLE RIGHT OF NATURE. ECONOMICS FACED WITH IRREVERSIBILITY Simone D’Alessand ro SUMMARY: 1 . Introduction. –2 . Ecosystem dynamics and irreversibility. –3 . Are we collapsing? –4 . Adaptation and maladaptation. –5 . Concluding remarks. 1 . Introd uction The Earth has seen several flourishing civilizations experiencing paths of rapid growth followed by dramatic slumps. Most times, the decline has been caused by two interconnected factors: uncontrolled population growth and the overexploitation of basic renewable resources (Diamond 2 0 0 5 and Page 2 0 0 5 ). There are however examples of traditional societies which managed –and continue to manage –natural resources sustainably, maintaining a nearly constant level of population and wealth for an extremely long period of time (Ostrom 1 9 9 0 ). Anthropologists, archaeologists and historical economists have compared the socioeconomic institutions of different societies, in order to grasp the large heterogeneity of their history. Besides institutional settings, it is important to recognize that the resilience of the man-nature interaction plays a crucial role in determining the failure or success of human institutions in the sustainable use of basic renewable resources. Hence, endogeneity can be traced both ways between institutions and ecological systems. As an example, consider the case of the Easter Island civilization where exhaustion of palm forests induced the collapse of society. A framework that allows for irreversibility in the development path is necessary in order to investigate the consequences of the extremely different ways of managing renewable resources that have emerged in human history. With the advent of capitalism, mankind began to experience something unprecedented. The cumulative growth process left no aspect of society unchanged. As clearly described by Bowles et al. (2 0 0 5 ) “[Capitalism] has brought with it unprecedented advances in scientific and other kinds 298 SIMONE D’ALESSANDRO of knowledge, astonishing developments in technology, previously unimaginable ways of sharing information, and rising standards of consumption, health, and education in most of the world. It has also led to fundamental realignments of power and redistributions of earth, the abolition of slavery, and radical changes in family life, ideals, and beliefs” (Bowles et al. 2 0 0 5 , 4 ). All those radical changes bring about strong confidence in the ability of the capitalist system to face and solve social and environmental problems, since change is a typical feature of this system. Technological advancements will bring about the necessary decoupling to continue along the path of unlimited growth. However, several studies on the transition towards sustainability show that the changes required to achieve a significant improvement in several indicators will shake the socioeconomic system, calling for a new balance of power within society. In particular, the implementation of strategies for a low-carbon economy will affect the growth rate, the unemployment rate and the distribution of income and wealth. The strength of such changes is perhaps the main explanation of the obstacles that nations face in signing agreements on emissions reduction. In the light of those analyses, the concept of sustainability cannot be defined as a state to be reached by the system. Given the emergence of strong tradeoffs in the transition, sustainability takes on a political meaning: society itself should determine its own concept of sustainability through a new set of worldviews, institutions and technologies1 . Given the current economic, social and ecological crisis, the main goal of this paper is to explore the possibility that our contemporary culture is inadequate to guarantee, and to sustain high levels of wellbeing in the future2 . Changes in our worldviews, institutions, and technologies are necessary in order to avoid the collapse of the system, even though they may have traumatic effects. While a crucial feature of our contemporary interconnected set of worldviews, institutions and technologies is the trust that markets and states can tackle and solve any social and environmental problem, a large body of literature challenges this view by empirically showing abundant examples where private and government interventions prove to be both ineffective and inefficient in regulating economic and social systems3 . Particularly critical seems to be the managing of the commons, including common-pool natural resources but also community and cultural resources, which in the last few decades have been privatized to guarantee high rates of profits to corporations, in the hope of fostering innovation and growth at the same time. This process is a key cause of the increased vulnerability of a significant share of the human population to economic 1 2 3 Costanza (2 0 1 4 ). Beddoes et al. (2 0 0 9 ). Ostrom (2 0 1 0 ). XIV. The Inalienable Right of Nature. Economics Faced with Irreversibility 299 and environmental shocks. Then in the last part of the paper, I will discuss how the emergence and development of the commons sector, managed through polycentric governance rules, may generate two positive effects: on the one hand it can reduce possible negative effects caused by changes in WITs, through the provision of community services and mechanisms of mutual help; on the other hand, it can contribute to generating new adaptive worldviews, institutions and technologies. The next section briefly discusses how ecosystems are characterized by nonlinear dynamics and threshold, and how threats also apply to the Earth’s biosphere. Social and environmental constraints harm the contemporary path of development of our global society. For this reason, Section 3 reviews a few cases of collapses of past societies, with a discussion of the major contributing factors. Section 4 provides evidence of a possible maladaptation of our culture to dealing with a new context of a full world . Section 5 draws some conclusions. 2 . Ecosystem d ynamics and irreversibility Economics only marginally deals with the issue of irreversibility. Henry (1 9 7 4 ) defines a decision as irreversible “if it significantly reduces for a long time the variety of choices that would be possible in the future”4 . Thus, the true effect of irreversibility is to raise the cost of investment. Underestimation of this concept in economic analysis also applies to the evaluation of environmental policies. In this respect, the standard framework adopted by economists is cost-benefit analysis. Let us briefly consider an example: a carbon tax on emissions may reduce global warming by distorting relative prices. This policy should be implemented if the present value of the expected flow of benefits is greater than the present value of the expected flow of costs. This approach is undermined by the presence of both irreversibility –with reference to the damage itself and to the costs of damage reduction policies –and uncertainty over future costs and benefits5 . Irreversibility and uncertainty are two crucial features of the mannature interaction. A large body of literature shows that ecological systems are characterised by nonlinear dynamics and display discontinuities in equilibrium states over time. The presence of thresholds may induce the system to abruptly change from one state to another when it is exposed to perturbations. However, any ecosystem is characterized by a certain degree of resistance to external shocks. The concept of resilience measures the ability of ecosystems to restore a given equilibrium state. Thus, highly resilient ecosystems can sustain perturbations without altering the current 4 5 Henry (1 9 7 4 , 1 0 0 6 ). Pindyck (2 0 0 0 ). 300 SIMONE D’ALESSANDRO stable state, while systems lacking resilience can easily flip into an alternative stable state. Perturbations need not be extreme events; they can even be slow and cumulative (e.g. climate change)6 . An extensively tested and documented example is that of shallow lakes. Economic analysis of this case is interesting because the release of nutrients, such as phosphorus, into the lake may cause eutrophication of the lake, bringing about a sudden sharp change from a clear state to a turbid one7 . Let us assume that in and around the lake there are two economic activities, agriculture and fishing. If agriculture is considered very important, then the best choice for the community is to push the lake towards the eutrophic, turbid state. Otherwise, the community has to find the right policy to conserve the clear state of the system, reducing the profitability of the agricultural activity8 . However, our concern here is different: the passage from the clear state to the turbid state is practically irreversible. Thus, if in the future agricultural activity becomes unprofitable there is a substantial loss in the welfare for the whole community. Under this uncertainty, are ex-ante economic evaluations useful? Furthermore, the example of shallow lakes is a very special case, one of which we know almost all the dynamical features. In most cases of human-nature interaction we have strong uncertainty about the proper dynamics of natural systems. In the last few years several studies have theorised that the biosphere as a whole is characterized by nonlinear dynamics and thresholds and works in a rather similar way to shallow lakes9 . However, humankind has no idea on the features of a different equilibrium in the Earth’s biosphere. According to Barnosky et al. (2 0 1 2 ) more than forty per cent of the Earth’s terrestrial ecosystems have shown a state shift. Nevertheless, the pressure of our economic system on ecosystems is continually increasing1 0 . In the rest of this paper, I will focus on two different issues strictly connected to the problem of irreversibility. One is about historical experiences of society’s collapse and the second is about the adaptive (or maladaptive) features of our socio-economic system. 3 . Are we collapsing? The history of the relationship between humans and the rest of nature is a fundamental source of knowledge for creating a sustainable and desirable future1 1 . However, while past civilizations were isolated from Ludwig, Walker and Holling (1 9 9 7 ). Carpenter and Cottingham (1 9 9 7 ), Scheffer (1 9 9 7 ). 8 This tradeoff is extensively discussed in Mäler et al. (2 0 0 3 ). 9 Rockstrom et al. (2 0 0 9 ). 10 Victor (2 0 0 8 , Chapter 1 ). 6 7 XIV. The Inalienable Right of Nature. Economics Faced with Irreversibility 301 other parts of the world, today we face global problems that increase the complexity of the interaction of socioeconomic systems with the rest of nature. Nevertheless, the success and failure of past civilizations tell us that collapse is possible and irreversibility is a concept that must be taken seriously into consideration. The Easter Island civilization is probably the most famous example of a societal collapse. Easter Island was first settled by a small group of Polynesians shortly after 4 0 0 A.D. The island was covered with a great palm forest at this time which supported the rise of wealth and population. The moai, i.e. the enormous statues standing at various locations on the island, are the most visible evidence of Easter Island’s past glory. However, when European explorers discovered the island in 1 7 2 2 , the few inhabitants seemed incapable of creating such architectures and they had no idea of how the large statues had been built and moved. The puzzle has been solved in the last few decades1 2 . The mismanagement of renewable natural resources seems to have been the fundamental cause of the collapse. Bahn and Flenley (1 9 9 2 ) call this cultural suicide whereby the islanders exhausted their palm forest. However, this is not a complete explanation of why this flourishing civilization was unable to deal with its ecological constraints. By considering the regeneration time of the palm forest and the lifespan of islanders, the irreversible threshold was exceeded several generations before complete exhaustion. Thus economic incentives could not work, even in this simple environment. Another well-studied example is that of the Kayenta Anasazi Civilization, which flourished in Long House Valley in the Black Mesa area of north-eastern Arizona (U.S.) from about 1 8 0 0 BC to about 1 3 0 0 A.D before abruptly disappearing1 3 . Axtell et al. (2 0 0 2 ) present a multiagent model created by instantiating the landscape, reconstructed from palaeo-environmental variables, and populating it with artificial agents that represent individual families. This study replicates the spatial evolution of Anasazi society in the valley. The results are surprisingly accurate: for instance, the historical clustering of settlements along the valley is precisely reproduced in the model. However, the simulation does not replicate the societal collapse. The authors suggest that the reduced population may have been insufficient to maintain their own cultural institutions, leading to the decision to leave the valley. As Diamond (20 05 ) points out “The Anasazi collapse and other south-western collapses … [illustrate] well our themes of human environmental impact and climate change intersecting, environmental and population problems spilling over into warfare, the strengths but also the dangers of complex Costanza et al. (2 0 0 5 ). See, for instance, van Tilburg (1 9 9 4 ) and Flenley and Bahn (2 0 0 2 ) for a description of the current understanding of the Easter Island Civilization. 13 See, for instance, Gumerman (1 9 8 4 ). 11 12 302 SIMONE D’ALESSANDRO non-self-sufficient societies dependent on imports and exports, and societies collapsing swiftly after attaining peak population numbers and power”. Beyond the over-exploitation of renewable resources, those collapses suggest that institutional and cultural failure was a common factor explaining the crises. While institutional failures refer to inappropriate institutional choices that result in inadequacy to solve a collective problem, cultural failures refer to ways of organizing the society that may limit the opportunities of adaptation. Institutional and cultural changes are slow and may prevent society from dealing with ecological problems. Moreover, those civilizations showed a tradeoff between short-term wellbeing and long-term sustainability. The literature presents three possible solutions to avoid societal collapse: (i) a bottom-up approach, (ii) market forces, (iii) top-down (or government prodding)14 . Firstly, Ostrom (1 9 9 9 ) shows evidence that small communities may build institutions capable of solving common pool resource problems. However, scale is an important issue. The fact that groups of people can self-organize and almost nullify their impact on the local environment does not ensure that six billion people can and want to do the same. Anyway, the next section discusses why these experiences may help the formation of a new adaptive culture by inducing a change in values. Secondly, economists would suggest letting markets work. I showed in the previous section that the presence of irreversibility in ecosystems undermines the ability of market incentives to work in the right direction. Even assuming full knowledge and no uncertainty, the horizon of economic agents can lead the socio-economic system to choose unsustainable paths. Since neither the bottom-up approach nor market forces alone are sufficient to ensure sustainability, government intervention is necessary. The form of intervention through legislation can induce markets to change their priority, and people to behave sustainably. As Page (2 0 0 5 , p. 1 0 6 1 ) highlights, the comparison between the Dominican Republic and Haiti clarifies the role of government in shaping the developmental path of a society. The crucial question is which policies are able to change our behaviour towards the environment, and how our culture can change to become more adaptive to the current situation. 4 . Ad aptation and malad aptation The previous section showed that collapse and societal decline occur when socio-ecological systems have become brittle and unable to adapt 14 Page (2 0 0 5 , p. 1 0 5 8 -6 2 ). XIV. The Inalienable Right of Nature. Economics Faced with Irreversibility 303 due to internal changes or external forces. Many scholars agree that effectively adapting to potential collapse requires a socio-ecological regime shift1 5 . In this context, regime is an interacting set of cultural and environmental factors that co-evolve together. When the environment changes, the existing regime is no longer able to sustain wellbeing. The society must change the regime or decline. Beddoe et al. (2 0 0 9 ) develop an evolutionary framework for exploring how our global society can redesign a new regime avoiding the collapse. Changing the socio-ecological regime needs the development of a new culture defined as an interdependent set of WIT. In this framework, worldviews are the perceptions of how the world works, what is possible and what is desirable, including the interaction of humans with the rest of nature. Institutions are a culture’s norms and rules, and constrain individuals’ behaviour and serve as problem-solving entities that allow societies to adapt to their environments. Technologies are the applied information that is used to create human artefacts. A variety of WITs may be adopted, depending on the local conditions and the selection pressures. The simple idea of the evolutionary approach is that the variants that best adapt to their environment will be employed by other communities and increase their frequency in the population. WITs are mutually interdependent and mutually reinforcing. A certain set of worldviews will drive the institutions and technologies by providing boundary conditions. For example, if the goal is to improve the quality of life in the long run, society will develop institutions and technologies that promote that goal, whereas if the goal is endless economic growth, it will develop a different set of institutions and technologies which foster the increase in GDP. Likewise, it is not difficult to find examples in which institutions (technologies) shape worldviews and technologies (institutions). Societal decline or collapse is a way in which a regime shift happens. However, it is not the only way in which evolution proceeds. When changes in the socio-ecological system cause adaptive WITs to become maladaptive, people may propose new worldviews, building alternative institutions and technologies able to deal with the new environment. As Beddoe et al. (2 0 0 9 ) point out, our socio-ecological regime is founded on an empty world, where humans could exploit abundant natural resources. In order to increase wellbeing and to cover people’s needs our society had to increase infrastructures and consumer goods. The institutions and the technology produced were adaptive for this situation. After a few centuries, we now live in a full world. This change leads our socioeconomic regime to be more brittle, less capable of sustaining wellbeing and more susceptible to collapse. Market institutions are designed to foster economic growth and to provide private goods at the expense of 15 See Gunderson and Holling (2 0 0 2 ) and references therein. 304 SIMONE D’ALESSANDRO public goods. Our technology maximizes energy and resource throughput and is not adapted to the constraints of a full world. Beyond the impact of humans on the rest of nature, and the risks associated with the possible abrupt change of human-dominated ecosystems, the failure of contemporary WITs is signalled by the present incapacity to provide wellbeing for all. Our current socio-ecological regime is based on the idea that promoting economic development is the main tool to raise wellbeing. However, there are many aspects that are important for people’s wellbeing, which are not (or only partially) accounted for by GDP. Furthermore, there is growing evidence that economic growth seems to be associated with undesirable side-effects on wellbeing. People declare themselves isolated and lonely, and feel unsafe with the social environment; there is a decline in trust in others and honesty, and there is a reduction of places in which to enjoy social relationships (unless mediated by economic activity)1 6 . Measuring and comparing wellbeing is a very difficult task for social scientists. Subjective measures are obtained through surveys. The typical question is the following: taking all things together, would you say you are: (i) very happy, (ii) quite happy, (iii) not very happy, (iv) not at all happy. If economic development led to an increase in wellbeing, we should find a positive correlation between GDP and the proportion of people who answer (i) to the previous question. Despite the difficulty of comparing happiness among different people, in a given year, people that are richer are on average happier (this is true even comparing the share for different countries). Surprisingly, if we consider the time series relation, from 1 9 4 6 to 1 9 9 6 in the US, the share of people that declare they are very happy slightly declines regardless of the experienced increase in GDP1 7 . This evidence, called the Easterlin paradox, has originated a large body of literature. The main result of the analyses is that happiness and GDP are unrelated in the long run, while happiness and relational goods (or social capital) are strongly and positively related1 8 . One possible explanation for this fact is that taking advantage of relational goods needs time and other free goods that are not commercialized. Economic growth tends to constrain the availability of non-market public goods, and people react substituting market supplies for relational goods in a sort of defensive expenditure that fosters economic growth. This process results in a virtuous cycle and in a continual decline in wellbeing. To summarize, there are many symptoms of maladaptation. On the one hand, our current socio-ecological regime is ecologically unsustainable; on the other hand it leads to a decline of relational goods and wellbeing. The main question is how to foster a transition from the current 16 17 18 See Bartolini (2 0 1 5 ) and references therein. See, for instance, Easterlin et al. (2 0 1 0 ). Bartolini et al. (2 0 1 1 ). XIV. The Inalienable Right of Nature. Economics Faced with Irreversibility 305 socio-ecological regime to a new sustainable regime. Economics explicitly or implicitly assumes that the definition of property rights on natural resources is a sufficient and often a necessary condition for sustainability19 . Smith argues that “the only way to avoid the tragedy of the commons in natural resources and wildlife is … by creating a system of private property rights”2 0 . This process often takes the form of enclosures enforcing exclusion and producing severe consequences on distribution and equity. The traditional static definition of the common pool resources –goods that are characterized by a high degree of rivalry and a low degree of excludability –misses the point of the deprivation that such resources suffered through commodification and market development. In particular, technological change results in a continuous increase of the possibility of exclusion. Thus, following the traditional economic paradigm, the market can substitute communities (and state) in the management of such resources since the ‘problem of non-excludability’ is technologically solved. Many scholars suggest investing in institutions and technologies reduces the impact of the market economy and preserving and protecting public goods2 1 . Governments should stimulate the development of new institutions, the commons sector, for managing existing common assets and for creating new ones. There are several reasons why some assets should be held in common, e.g. justice, efficiency, and sustainability. However, the commons are not a peculiar feature of a resource, but a managing procedure –communing –which can be considered as a proper production process where communities generate institutions (rules and norms) and the technology able to manage and to re-enhance the benefits and services provided by commons pool resources and Nature. Thus, people involved in such activities are co-prod ucers of alternatives2 2 . In this perspective, the promotion of commons increases social relations and contributes to enhancing wellbeing during the transition. Moreover, from an evolutionary perspective, different social settings may reduce the risk of the lack of alternative worldviews, institutions and technologies. Thus communing may be considered a win-win adaptive strategy. 5 . Conclud ing remarks The inalienable right of Nature calls for a redefinition of institutions able to satisfy ecological and social constraints. We have seen how 19 20 21 22 Ostrom (2 0 0 7 ). Smith (1 9 8 1 , 4 6 7 ). See, for instance, Barnes (2 0 0 6 ) and references therein. De Angelis (2 0 0 7 , p. 2 3 3 ). 306 SIMONE D’ALESSANDRO perturbations can deeply modify the services supplied by ecosystems. Many studies show that we are going beyond several fundamental thresholds of the safe operating space for humanity. We need to create new worldviews, institutions and technologies that support the needed transformation in order to avoid societal collapse. Defence and enhancement of a common sector is a promising strategy to generate a socio-ecological regime adaptive to a full world. The ineluctability of change in worldviews, institutions and technologies seems to raise an underlying question: can capitalism adapt to the new socio-ecological regime or must it be replaced by a new economic system? I believe this is not the right question. We need to change our worldview and produce new institutions able to tackle the contemporary social and environmental challenges. Those institutions may be either integrated into the capitalist system or they may require a new economic system that better fits in the new socio-ecological regime. Capitalism generates perpetual change and it co-evolves with those societal transformations. The system we face today is very different from the one we had during the industrial revolution. The urgency in today’s era is to find solutions instead of theorizing the fall of capitalism or the rise of a new economic system. Any possible solution needs transdisciplinarity in research that integrates knowledge of natural and social sciences and transcends their traditional disciplinary boundaries. Bibliography Axtell, R.L., J.M. Epstein, J.S. Dean, G.J. Gumerman, A.C. Swedlund, J. Harburger, S. Chakravarty, R. Hammond, J. Parker, and M. Parker. 2 0 0 2 . Population growth and collapse in a multiagent model of the Kayenta Anasazi in Long House Valley. Proceed ings of the National Acad emy of Sciences, 9 9 , 7 2 7 5 -7 2 7 9 . Barnes P. 2 0 0 6 . Capitalism 3 .0 . A Guide to Reclaiming the Commons. San Francisco: Berrett-Koehler Publishers. Bartolini, S. 2 0 1 5 . Manifesto for Happiness. Shifting society from money to well-being. Philadelphia: University of Pennsylvania Press. Forthcoming. Bartolini, S., E. Bilancini, and M. Pugno. 2 0 1 1 . Did the decline in social connections depress Americans’ happiness? Social Ind icators Research, 110, 1 0 3 3 1059. Beddoe, R., Costanza, R., Farley, J., Garza, E., Kent, J., Kubiszewski, I., Martinez, L., McCowen, T., Murphy, K., Myers, N., Ogden, Z., Stapleton, K., Woodward, J., 2 0 0 9 . Overcoming systemic roadblocks to sustainability: the evolutionary redesign of worldviews, institutions and technologies. Proceed ings of the National Acad emy of Sciences, 1 0 6 , 2 4 8 3 -2 4 8 9 . Bowles, S., R. Edwards, and F. Roosvelt. 2 0 0 5 . Und erstand ing capitalism: Competition, command , and change. Oxford: Oxford university press. Carpenter, S. R. and K. L. Cottingham. 1 9 9 7 . Resilience and Restoration of Lakes. Conservation Ecology, 1 , 2 . Costanza, R., L.J. Graumlich, and W. Steffen. 2 0 0 5 . Sutainability or Collapse: Lessons from Integrating the History of Humans and the Rest of Nature. In Sustainability or Collapse? An Integrated History and Future of People on Earth, eds. XIV. The Inalienable Right of Nature. Economics Faced with Irreversibility 307 Costanza, R., L.J. Graumlich, and W. Steffen. 3 -1 8 . Cambridge, Massachusetts: MIT Press. Costanza, R., I. Kubiszewski, E. Giovannini, H. Lovins, J. McGlade, K. Pickett, K. Ragnarsdottir, D. Roberts, R. D. Vogli, and R. Wilkinson. 2 0 1 4 . Time to Leave GDP Behind. Nature, 5 0 5 , 2 8 3 -2 8 5 . De Angelis, M. 2 0 0 7 . The Beginning of History. Value Struggles and Global Capital. London: Pluto Press Diamond, J.M. 2 0 0 5 . Collapse: how societies choose to fail or succeed. New York: Viking. Easterlin, R.A., L.A. McVey, M. Switek, O. Sawangfa, and J.S. Zweig. 2 0 1 0 . The happiness-income paradox revisited. Proceed ings of the National Acad emy of Sciences 1 0 7 , 2 2 4 6 3 –22 4 6 8 . Flenley, J., and P. Bahn. 2 0 0 2 . The Enigmas of Easter Island . Oxford: Oxford University Press. Gumerman G. J. 1 9 8 4 . A View from Black Mesa: The Changing Face of Archaeology. Tucson: University of Arizona Press. Holling, C.S., Gunderson, L.H., and D. Ludwig. 2 0 0 2 . In Quest of a Theory of Adaptive Change. In Panarchy: Und erstand ing Transformation in Human and Natural Systems, eds. Gunderson, L.H, and C.S. Holling. 3 -2 3 . Washington, DC: Island Press. Henry, C. (1 9 7 4 ). Investment decisions under uncertainty: The irreversibility effect. American Economic Review, 6 4 , 1 0 0 6 –10 1 2 . Ludwig, D., B. Walker, and C. S. Holling. 1 9 9 7 . Sustainability, stability, and resilience. Conservation Ecology [online] 1 , 7 . Mäler, K.-G., A. Xepapadeas, and A. de Zeeuw. 2 0 0 3 . The economics of shallow lakes. Environmental and Resource Economics, 2 6 , 6 0 3 –62 4 Ostrom, E. 1 9 9 0 . Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press. Ostrom, E. 2 0 1 0 . Beyond markets and states: Polycentric governance of complex economic systems. American Economic Review, 1 0 0 , 6 4 1 -6 7 2 . Ostrom, E., M.A. Janssen, and J. M. Anderies. 2 0 0 7 . Going beyond panaceas. Proceed ings of the National Acad emy of Sciences 1 0 4 , 1 5 1 7 6 -1 5 1 7 8 . Page, S.E. 2 0 0 5 . Are We Collapsing? A Review of Jared Diamond’s Collapse: How Societies Choose to Fail or Succeed. Journal of Economic Literature, 4 3 , 1 0 4 9 1062. Pindyck, R.S. 2 0 0 0 . Irreversibilities and the timing of environmental policy. Resource and Energy Economics, 2 2 , 2 3 3 -2 5 9 . Rockström, J., W. Steffen, K. Noone, Å. Persson, F.S. Chapin III, E.F. Lambin, T.M. Lenton, M. Scheffer, C. Folke, H.J. Schellnhuber, B. Nykvist, C.A. de Wit, T. Hughes, S. van der Leeuw, H. Rodhe, S. Sörlin, P.K. Snyder, R. Costanza, U. Svedin, M. Falkenmark, L. Karlberg, R.W. Corell, V.J. Fabry, J. Hansen, B.H. Walker, D. Liverman, K. Richardson, P. Crutzen, and J.A. Foley. 2 0 0 9 . A safe operating space for humanity. Nature, 4 6 1 , 4 7 2 –47 5 . Scheffer, M. 1 9 9 7 . Ecology of Shallow Lakes. New York: Chapman and Hall. Smith, R.J. 1 9 8 1 . Resolving the tragedy of the commons by craeting private property rights in wildlife. CATO Journal, 1 , 4 3 9 -4 6 8 . Van Tilburg, J.A. 1 9 9 4 . Easter Island : archaeology, ecology and culture. London: British Museum Press. Victor, P. A. 2 0 0 8 . Managing without growth: slower by design, not disaster. Cheltenham: Edward Elgar. C H A P T E R XV ENVIRONMENTAL TAXATION AND HUMAN RIGHTS Carlos María López Espad afor SUMMARY: 1 . Critical elements on environmental taxation. –2 . Tax justice and right of ownership. –3 . European Union tax law and ban of confiscation in tax matters. –4 . Non-confiscation in tax matters and the fundamental right to private property. –5 . Private property in the charter of fundamental rights of the European Union and the material principles on tax justice. –6 . Rationality and tax system. 1 . Critical elements on environmental taxation Sometimes, on the pretext of “additional taxation,” certain taxes are used only to achieve high public revenues. Some taxes are presented by the tax legislator as environmental taxation, aimed at reducing emissions of CO2 (carbon dioxide), although their structure seems to indicate that in the end their main purpose is not this, but to get more public revenues. For example, think about the excise duty on hydrocarbons, with regard to the taxation of petrol and diesel fuels. The consumer is to pay indirectly an amount greater than the value of the product through taxation. Therefore, the consumer, when buying gasoline, pays a price that is the sum of the value of the product and the levy, which represents most of the final amount, including the excise duty indirectly charged, and the Value Added Tax. Individual states are not the only ones responsible for this situation but also EU institutions are, since the tax on mineral oils has been harmonized by EU directives. However, after all, the Union with this type of tax rather than thinking about environmental protection has mainly thought to protect free competition in the European petrol and diesel market, with the aim of ensuring that the final price of this product would not be too different from one Member State to another. The EU sets a rate or minimum tax load, which may be increased by the Member states. Pollution control should be achieved mainly through tax breaks for biofuels, and not so much, as specified above, with exorbitant tax levies on still needed fuels. 310 CARLOS MARÍA LÓPEZ ESPADAFOR Such high taxation on petrol and diesel will eventually cause a damaging effect on the people living in areas where there are not many opportunities for public transportation, compared to the inhabitants of big cities. Hence the residents of rural areas are going to pay for this taxation. It has not been proven at all that a higher tax levy corresponds to lower fuel consumption. We are talking about products which cannot be set aside in the current way of life. Only the economic crisis, with a decrease in economic, commercial and industrial activities, has succeeded in decreasing the consumption of these products. Not even a rise in the oil price can considerably reduce fuel consumption; neither could an increase in taxes actually reduce it. Then we should wonder whether a tax which is so high is contrary to the material principles of tax justice. The problem is that in European Union Law there is not a definition of the so-called principles involved. However, in this law there is a consecration of the right to property as a fundamental and human right. Therefore, we should analyze if these cases of high tax levy represent or not a violation of the right to property, a right from which in some states the principles of tax justice are deduced. 2 . Tax justice and right of ownership The search for tax justice is a pending issue in the process of European integration. However, this lacuna may make it difficult for such integration to be built on sufficiently firm legal and economic bases. Therefore, the principles of tax justice in European Union Law are still a not fully explored subject of investigation. The institutions of the European Union hold a series of taxation jurisdictions granted by Member States; among them there is particular harmonization of certain State taxes. The constant tension between direct and indirect taxes affects socioeconomic policy, so that it is appropriate to identify the constitutional and legislative principles that could in some way limit the role of the latter in comparison to the former, and find their basis in EU Law. Even though in most EU Member States the material principles of tax justice correspond in their essential content to the original EU Law, an explicit statement of those principles does not exist. In Spain, the study of tax law has focused on the primacy of the principles contained in paragraph 1 of Article 3 1 of the Constitution: the tax justice of material principles. Article 1 3 1 of the Spanish Constitution, at the end of paragraph 1 , in relation to income and wealth, proclaims “its fairer distribution”. This final declaration sanctions Spain as a “social and democratic Constitutional State”, in paragraph 1 of Article 1 of the Constitution. This suggests that the nature of the tax and social justice of our State, often poorly analyzed, instead was the object of the first precepts of the Constitution. XV. Environmental Taxation and Human Rights 311 Reading in conjunction Articles 1.1, 31.1 and 131.1 of the Constitution, it is inferred that in a social and democratic constitutional State redistribution of wealth can be implemented through public revenue and expenditure. For this reason, before exorbitant fiscal pressures on goods and products, for which the price/value of the asset becomes lower than the taxes, there is the need to find a constitutional provision that would prevent such excesses. All this forces us to say that in tax matters we must respect the right to private property, questioning the maximum tax levy on property, also in relation to the acquisition costs of goods and products. It is obvious that in order to consume a good it is necessary to acquire it: the problem arises when the taxation on a good or product obstructs the possibility of acquisition disproportionately and unlawfully. One more clarification: when it comes to property, the mind turns to the traditional patterns of property of real estate; instead, it is necessary to think that property is a concept applicable to any type of product, since, in principle, in order to consume, you must first purchase the property. Therefore, we cannot limit ourselves to state legislation, but must take into account the impact on EU law, as most of the indirect taxes are harmonized by the Community. The concept of non-confiscation does not explicitly appear in the European Community discipline, although it should be a fundamental right sanctioned not only in the Constitution, but also by the European Community discipline on fundamental rights. The crisis experienced by the European and world economy has highlighted the need for closer economic integration between the Member States of the European Union. There are two essential tools to achieve real economic integration: monetary policy and tax policy. In monetary policy matters, greater integration in the Eurozone and a major limitation of the public deficit has been reached. In fiscal policy, the rule of unanimity in tax harmonization matters is still applied. Thus, only with the unanimity of the representatives of the Member State Governments is it possible to adopt the directives on tax harmonization. This lack of democratic legitimization in the field of tax harmonization, which does not depend on the will of the Parliament elected by European citizens, renders even more real the prediction by the material principles of tax justice as a limit and guarantee in the tax harmonization for EU Member State taxpayers, by virtue of the primacy of its Law with respect to the Law of the Member States. Pursuing examination of the material principles of tax justice in tax harmonization seems a necessary step for the extension of the powers of the European Union in relation to the tax harmonization mentioned. Then it must be emphasized that, within the Member States, the development of the material principles of tax justice occurred mainly with regard to direct taxes. By contrast, the powers of EU institutions in the field of tax harmonization essentially concern indirect taxes. Thus, the prediction of the material principles of tax justice with respect to tax 312 CARLOS MARÍA LÓPEZ ESPADAFOR harmonization would result in implementation of these principles with regard to indirect taxes. There is no express provision for such material principles of tax justice in the original law of the European Union, though, as Bosello said (Bosello 1959, 1513), with regard to EU member states “The constitutional principles that inspire the tax legislation in individual States are substantially the same”. However, some of these principles might be inferred, as mentioned, from consecration of the right to property as a fundamental right in the original Law. In a way, it would be a parallel process to that achieved by the Member States, which have derived some of these principles from the provision of property rights in their relative national Constitutions. This approach would allow observance of the principles of economic capacity and especially the principle of nonconfiscation. 3 . European Union tax law and ban of confiscation in tax matters As a first approximation, we could define the principle of nonconfiscation as the duty of the tax legislator not to apply taxes that cause cancellation of the economic capacity of the subject, leading to unreasonable taxation. For this reason, non-confiscation could be seen as a manifestation of the right to private property in the tax field. Article 3 1 of the Constitution, paragraph 1 , provides that the tax system cannot result in the confiscation of property. At the same time, the tax system should be set according to the parameters of equality and progressiveness, its ‘guiding’ principles. On the other hand, Article 3 3 guarantees the right to private property and at the same time shows its social function. This social function can be observed from many points of view, one of which, without a doubt, is the duty to contribute. The doctrine, though with varied forms, has recognized the link between the ban on confiscation and the right to private property (Palao Taboada 1 9 7 9 , 3 1 9 -3 2 0 ; Núñez Pérez 1 9 9 1 , 8 ; Sánchez Serano 1 9 9 6 , 9 1 9 2 ; Naveira De Casanova 1 9 9 7 , 4 4 8 : Cazorla Prieto 2 0 0 0 , 1 1 2 ; García Dorado 2 0 0 2 , 9 0 ). Both concepts are defined in two different precepts of our Constitution. The question should be whether this means that they have different or distant meanings, when we consider tax matters. In our opinion, the answer to this question must be negative, and a link between the two concepts or ideas has to be recognized. From a purely technical legal point of view, in a more rigorous and systematic way, it would not be possible to think that two provisions can say the same thing, because one of the two would be unnecessary and normally the legislator, or in this case the constituent, does nothing useless. Thus, one might say that two different rules have to identify two different concepts. XV. Environmental Taxation and Human Rights 313 The concept of private property is actually a general concept that is applicable in all branches of law, and thus in tax matters. If so, one might think that the general consecration of the right to private property would be sufficient to prevent taxes taking on a confiscatory character. So, what advantage would there be to have an express provision of nonconfiscation? Would it have a different meaning? The jurisdiction of the European Union institutions on taxation essentially concerns indirect taxes, although there are certain Community provisions relating to direct taxes. The Law under the legislation enactment of the EU institutions has to respect the postulates sanctioned by the regulations of the original law of the Union. Actually, we do not find, in the cited original law, an express manifestation of the essential principles in the field of tax justice. However, nothing prevents the principle of non-confiscation being inferred from some provisions of the original law of the European Union, and in particular from the right to private property. Basically, as concerns tax matters, it is possible to identify a dual line of protection against violations of these principles, deriving both from state regulations and from Community regulations. Consequently, in the presence of violations of these principles, alongside the possibility to bring the action before the Constitutional Court of each State, within the Community, the Court of Justice of the European Union would have competence on the matter of tax harmonization or proper Union resources. A first analysis could lead us to define the principle of non-confiscation in tax matters as the duty of the tax legislator not to set taxes that lead to a levy which can wipe out the economic possibilities of the subject, and that would result, therefore, in unreasonable taxation. Speaking of a tax that wipes out the economic possibility of the subject does not mean a tax which allows the subject to have only the minimum subsistence. As a matter of fact, that in order for the levy to be legitimate, what is left in the hands of the subject after the levy should be as close as possible to the economic result of his or her productive capacity (meant as a capacity to produce revenue) and never less than the amount of the tax collected in respect of the participation in the maintenance of public expenditure. In this regard sometimes the doctrine, in my opinion, has been extremely restrictive in identifying the economic resources that should be legitimately left over for the taxpayer as a result of the tax levy. As we will see below, the consecration of the right to private property sanctioned in the Charter of Fundamental Rights of the European Union goes in this direction. 314 CARLOS MARÍA LÓPEZ ESPADAFOR 4 . Non-confiscation in tax matters and the fund amental right to private property In my opinion, in virtue of what was claimed above, non-confiscation on taxation matters presents itself as a manifestation of the right to private property1 in the tax matter. The Constitutions of European states expressly consecrate the fundamental right to private property in the tax law. I believe that the ban on confiscation should be linked to the right to private property. Yet, we must wonder whether the right to private property, which is a general right valid for the different branches of the legal system, may also be relevant in the field of taxation. If so, it might be thought that the general consecration of the right to private property would be sufficient to prevent taxes from producing effects of confiscation. Non-confiscation can be understood as a limitation to taxation which presupposes respect for private property in tax law. Private property plays a social function, and tax law must implement a redistributive function of the wealth of a social and democratic state of law. Therefore, although the tax levy necessarily implies a limitation of private property, that levy, in order to be legitimate, cannot completely empty of content the right to property. The levy may limit private property, but it should not completely destroy its contents. In other words, the tax levy may limit the property only up to a certain limit. What is this limit? It is surely the one determined by a threshold of maximum taxation which, if exceeded, would affect the very nature of property debasing the private-law content. To put it differently, State constitutions give property an essentially private-law qualification. This is to say that the property and its use must be valid to a greater extent for the taxpayer than for the State. If not, the provisions of the right to private property in the constitutions would have no sense. Private property of the taxpayer cannot have too public a projection; the goods and rights of the taxpayer should never be at the service of the tax authorities to a greater extent than at the service of the taxpayer. This rule would be violated by a tax system that imposes a confiscatory levy type. We could just say that if the State2 took over 5 0 percent of the income, we would be in the presence of confiscatory taxation, as in the pockets of the taxpayers there would remain a quantum inferior to the revenue of the State. The same thing would occur, in consumption taxes, if in purchasing a good the taxpayer ended up sustaining tax of more than 1 The right to property is born in the civil field, it is consecrated in the constitutional field and it is used in the taxation field. On the relations between civil law and tax law, see Fregni 1 9 9 8 , 6 -9 . 2 And, of course, other public bodies. XV. Environmental Taxation and Human Rights 315 half of the final price of the goods (tax included); for example, if the product cost 1 0 0 € and more than 5 0 of these corresponded to value added tax and excise duties, we would be dealing with a confiscatory situation, in principle. 5 . Private property in the charter of fund amental rights of the European Union and the material principles on tax justice The prohibition on confiscation in the European tax system could be derived from the protection of private property in the European Union. Within Union Law, there is a consecration of the right to private property although not even in this field is protection of the principle of nonconfiscation in the tax system expressed. Consecration of the right to private property as part of European Union law can be identified from jurisprudence of the EU Court of Justice, which has claimed that the general principles and fundamental rights in the Constitutions of the Member States are an integral part (also) of European Union law. In addition, there is the consecration of the right to private property contained in the European Charter of Fundamental Rights. In this Charter, the right to property is covered aseptically, without being classified as private. Yet, the context in which it appears leaves no doubt that the meaning of the EU provision refers to private property as the essential core of the right to property. The draft treaty by which the intention was expressed to subscribe to a Constitution for Europe, later replaced by the Lisbon Treaty (from which the content of this Charter was deleted), sanctioned in Paragraph 1 , Article II-1 7 , stated that: “Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as it is necessary for the general interest”. In any case, it is possible to find a similar text in paragraph 1 of Article 1 7 of the Charter of Fundamental Rights of the European Union, both in the 2 0 0 0 /C 3 6 4 /0 1 version, and in the 2 0 0 7 / 3 0 3 /0 1 version, solemnly proclaimed on 1 2 th December 2 0 0 7 , the day before the signing of the Treaty of Lisbon. Thus, the content of the mentioned Charter attempted to incorporate the text of the draft of European Constitution, which never came to light. However, although this has not been well understood, the Treaty of Lisbon, as we shall see below, provided an express reference to the provisions of the mentioned Charter. On the other hand, in the fifth paragraph of the Preamble of the Charter it is stated that: “This Charter reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the Treaty on the European Union, the Community Treaties, the European Convention 316 CARLOS MARÍA LÓPEZ ESPADAFOR for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Community and by the Council of Europe and the case-law of the Court of Justice of the European Communities and of the European Court of Human Rights”. Together with this, and well beyond Community legislation, it must be noted that Additional Protocol 1 of the European Convention on Human Rights3 establishes in the first paragraph of Article 1 , that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions” later stating that “No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”. The second paragraph of the same Article provides that “The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”. This article is entitled with the inscription “Protection of Property”. The fact that this article has to do at the same time with private property and taxes does not mean that taxes are able to render property meaningless, as this would be, obviously, against the recognition of protection of private property sanctioned in the very Convention4 . At the same time, it must be noted that the Treaty on the European Union already established in the first paragraph of Article 6 , that “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States”. It is then stated in the second paragraph of the same article that “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1 9 5 0 and as they result from the constitutional traditions common to the Member States, as general principles of Community law”. Paragraph 8 of Article 1 of the Treaty of Lisbon (signed in Lisbon on December 1 3 of 2 0 0 7 ), which amended the Treaty on the European Union along with the founding treaty of the European Community, rewrote article 6 of the Treaty on the European Union. Following this change, in the first line of paragraph 1 of Article 6 of the Treaty on the European Union it was stated that “The Union recognizes the rights, freedoms and principles enshrined in the Charter of Fundamental Rights of the European Union on 7 December 2 0 0 0 , as adopted on 1 2 December 2 0 0 7 in Strasbourg, which has the same legal value as the Treaties”. In paragraph 2 of the new version of Article 6 it is also stated that “The 3 A treaty provided for also in the Treaty of Lisbon, as we will see. Among the explanations on the Charter of Fundamental Rights (2 0 0 7 / C 3 0 3 /0 2 ), in the penultimate paragraph of the explanation on the ‘right to property’, it is stated that this law has the same extension and meaning as the one guaranteed by the ECHR. 4 XV. Environmental Taxation and Human Rights 317 Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties”. Finally, paragraph 3 of the amended Article 6 of the Treaty states that “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”. Focusing, specifically, on the issue of fundamental rights with regard to the right to private property, it is useful to start from the Judgment of the Court of Justice of the European Union of 1 3 December 1 9 7 9 (Case 4 4 /7 9 ), and the more recent judgment of the same Court of 1 0 July 2 0 0 3 (Joined Cases C-2 0 /0 0 and C-6 4 /0 0 ). In these judgments it was declared that “fundamental rights form an integral part of the general principles of law which the Court ensures compliance and that, for that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have signed or cooperated in,” adding further that “ECHR has, in this regard, special significance”. It is necessary to highlight, along with the other fundamental rights thus protected, the importance of the right to property, and also, according to the quoted judgments, that in the exercise of fundamental rights some restrictions would be allowed only if “they do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights”. Although in European Union Law the principle of non-confiscation in tax law is not expressly sanctioned, the right to private property is definitely recognized. Prohibition for Community rules to imply confiscatory situations in tax law therefore arises from the will to enforce respect for the right to private property, which is also enacted, as we have stated, by the Community legal discipline. Moreover, contemplation of a fundamental right like this must be considered part of the original law of the European Union, to which its derived legislation must necessarily be subordinated. It follows that the tax laws enacted by Community institutions, whether they are intended to regulate the European Union’s own resources or to regulate EU tax harmonization, will never produce a content that produces confiscation effects in tax matters5 ; if that were the case, it would violate a fundamental right of the European Union. 5 “[P]rinciples such as the interdiction of confiscation, respect for private property and freedom of enterprise, which appear in the constitutions of all Member States, are also basic principles of Community law, which must respect the rights of the details deriving from those principles”. This author adds that “in other words, the Community institutions cannot take measures that could not have been adopted by any of the national parliaments of the fifteen members, which could not clearly establish a confiscatory tax”: (Falcon y Tella 1 9 9 6 , 6 ). 318 CARLOS MARÍA LÓPEZ ESPADAFOR As long as in the original law of the European Union6 there is not an express provision of the material principles of tax justice7 that could protect European taxpayers and curb the excesses of tax harmonization, protection of taxpayers will not rest on solid foundations. To ensure protection of the taxpayer8 and to build solid fiscal harmonization it is necessary to establish the principles of the original law of the Union. To do this a reform of the EU treaties is needed. Currently, within the original law of the European Union the main treaties are the Treaty on the European Union and the Treaty on the Functioning of the European Union. In view of its content, it could be said that the latter treaty is the most likely to provide the express statement of the material principles of tax justice in European Union Law. 6 . Rationality and tax system Article 3 1 of the Spanish Constitution, a predicate of the tax system, expresses the principle of non-confiscation, which would play its role in relation to this system as a whole, beyond all taxation. However, at the same time we have seen the bond that exists between the ideas of non-confiscation in tax matter and of private property. Their interpretation will always have to be realized from the perspective of justice, since this, beginning from the title of ‘just’ which appears explicitly in the aforementioned precept of the Constitution, becomes a value in itself on tax matters, solving possible doubts in the articulation of the other Principles. However, no matter how uncertain in itself the idea of justice may be, there are some elements which obviously could not be disregarded as a whole, such as the ideas of logic and rationality. The ‘just’ will be increasingly likely to appear as illogical or irrational. 6 With respect to the old European Constitution Project, it seems “worth considering the possibility that the ’European Constitution’ being prepared may also contain some principles of tax law of a ’constitutional type’ and not just the key principles in the community system reinterpreted in a fiscal perspective, but other principles, proper to tax matters that for the importance they play in the Member States may take on a constitutional value” (Maisto 2 0 0 3 , 1 3 2 ). 7 “I think, personally, of a text that could be formed as follows: ‘Tax levy can be resolved only by representative bodies of the communities that benefit from it. They are designed to achieve the department of public expenditure according to individual ability to pay, in respect of the free and dignified existence of the taxpayer, solidarity among associates and certainty of the law. The Union promotes and protects the financial autonomy and the taxation autonomy of subcentral entities’” (La Rosa 2 0 0 3 , 1 1 2 ) 1 1 2 . 8 It is to be hoped that these considerations may help to “open up a perspective of investigation which makes it possible to grasp the progresses of European legal integration in the area of taxation, and at the same time to stimulate this integration, designing the rights of taxpayers as rights of the citizen” (Del Federico 2 0 1 0 , XIII). XV. Environmental Taxation and Human Rights 319 As previously stated, in relation to the tax system, we talk about ‘system’ and ‘just’9 in our Constitution. Those requirements, contained in the first paragraph of art. 3 1 of the quoted text of the Constitution, can be satisfied only by rationalising the organization of the different tax laws. In an analysis of the idea of rationality in relation to the tax system it is necessary to start from the considerations by Sainz De Bujanda, which necessarily must be considered here. This scholar distinguishes between an ‘internal rationality’ and an ‘external rationality’. He indicates that “a tax system is rational only if, giving internal rationality to each individual tax, it aims to associate it with external rationality, that is, its ability to combine harmoniously with the remaining charging procedures that integrate together”. This author stresses that “the external rationality of a tax is its capacity to integrate into the system, without breaking the rationality of the latter, which happens if any of the taxes which compose it, added to the others, destroys the basic objectives of the system, and so violates the general principles of tax justice”. He adds that “the technique to achieve this external rationality is that the legislator, when he determines any tax or substantially changes an existing one, verifies with rigor if it may be integrated in the whole without problems”. All this leads to the affirmation that “rationality cannot in any way be separated from the value of ’justice’ nor from other requirements associated with this, such as security and certainty”. In this way, this author notes that “a tax system, in fact, is rational only if it is right and it can be right only if it conforms to the basic and main regulations of the positive order, contained in the Constitution, and to the general principles of law, principles of natural law tradition”. (Sainz De Bujanda 1 9 8 7 , 5 -1 5 ). These words contain considerations that have necessarily to be taken into account. Compared to the two perspectives of rationality mentioned, internal and external, the latter is the one most directly connected with the idea of the system, even though neither of them can be recognized of course in the realization of a tax system. If we really want the tax system to be precisely this, it cannot only consist of an accumulation of taxes, but also of harmonious interweaving of them. To the extent that it is not a mere sum of taxes, but also a harmonious set of these, rationality will be much greater and, in its working, as we have seen, the justice which must prevail in the tax system will be even greater. Analysis of whether a tax system as a whole is confiscatory or damages the overall ability of the subject can be difficult. It must start from compliance with the constitutional principles of tax justice of each tax in 9 “[J]ustice is, at the same time, the most basic and the most abstract concept of the law” (Marongiu 2 0 0 3 , 1 1 6 ). 320 CARLOS MARÍA LÓPEZ ESPADAFOR particular. Later, it has to move on to analysis of conformity with the Constitution regarding the confluences of taxes on the same manifestation of economic capacity and, thus, of cases of multiple taxation on the same subject. From the analysis of a single tax we would move on to the taxes added to it. This allows us a more precise and rigorous review and observation of the justice of the tax system as a whole. As a result of this analysis, specific cases of unconstitutionality could be highlighted or we could understand that there are none. However, what would be proven would be possible situations that, even keeping within the precise limits of the constitution, would come close to the limit of the rationality, the systematic nature, of the good technique and of the order of the tax system as a whole. Therefore, we consider that a useful technique for analysing the rationality and constitutionality of the tax system is to begin from the rationality and constitutionality of each taxation and subsequently to move on to investigation of the implications of the technical appropriateness and constitutionality of cases of multiple taxation, as a confluence of certain taxes, thus contributing to the understanding and consideration of a more rational tax system as a whole. It may happen that each aspect of the tax system individually taken apparently responds to the principle of economic capacity. However, against unreasonable accumulation of taxes, the tax system as a whole could levy on the subject a higher contribution to public expenditure than the one they would pay on the basis of their global economic capacity, reaching confiscatory limits. On the other hand, Moschetti (Moschetti 2 0 0 3 , 4 ) explains that elements of rationality are coherence between the objectives that the legislator has set and the means used to achieve these aims; consistency between individual provisions and the system in which the rules are set; proportionality between the means and the purposes; and proportionality between loss of a legal value and satisfaction of other legal values. Thus, when the legislator pursues an apparent extra-fiscal end, very often it leads to an illogical situation, when the means used do not help to reach that objective, as I have already pointed out. So ideas of rationality and justice should preside over interpretation of the ideas of non-confiscation and private property in tax law. In this way, application of these ideas, which do not prove rational, is unlikely to be considered right. It is very difficult to determine whether the tax system as a whole is or is not confiscatory. In relation to what was said above, all taxes (not only direct ones) above 5 0 % of the total income of the subject would begin in principle to clash with the patterns that today social consciousness would recognize as rational. However, as we said, applying this limit of 5 0 % to the tax system as a whole can be very difficult in relation to the variety of situations that may be occur in real life, and especially compared to combined direct and XV. Environmental Taxation and Human Rights 321 indirect taxation. A subject may pay tax that is more than 5 0 % of his or her income and in his or her life not perform actions of consumption that submit him or her to sustain for these a greater tax burden than the value of what he or she bought for consumption. Moreover, we could find other subjects whose overall contribution in all direct and indirect taxes does not exceed 5 0 % of their income and for whom it is usual to perform actions of consumption where the tax burden incurred for these is higher than the value of what they buy for consumption. Hence, in the search for demarcation of the principle of nonconfiscation, seeking that rationality we talked about and implementing a fair tax system, we have to start through the analysis of every tax and the set of taxes on the same wealth. Resolution of situations of conflict regarding non-confiscation in tax matters, complying with the idea of private property in the most rational form possible, should start by examining each tax, determining whether it is confiscatory or not, and then, if not individually found to be confiscatory, we should evaluate the accumulation of tax on a single manifestation of wealth. Later, once its confiscatory nature was determined, its unconstitutionality would be clear, although the tax system as a whole did not reach the limit described above. And, before that, if the tax system as a whole, with a large majority of taxpayers, exceeded the aforementioned limit, the system would largely suffer from being confiscable and thus, unconstitutional, although its taxes or partial accumulations did not give this appearance examining them individually. Specifying all the stated ideas and the limits of what the tax system as a whole can expect, the tax on some consumptions may already be confiscatory. Therefore, in relation to the consumption of each type of good, in particular, we must proceed by determining whether each tax individually considered can be confiscatory and then evaluate the accumulation of taxes, that is, the circumstances of double or multiple taxation on each consumption and in particular whether they can be confiscatory. To this end, neither each tax individually considered nor the set of taxes on consumption of any type of goods can be a greater tax burden than the value of what enters the assets of the subject, which is what can be consumed. A violation of this limit implies rupture of the idea of private property. In order to consume it more than twice what enters would outflow. Public finance would take away more than what we have acquired is worth, and property would become more public than private. This would be something irrational and, as such, clearly unfair. In this direction, according to what has been said, we mean that there should be a limit on non-confiscatory taxation on consumption, and thus respect for the right of private property in this area of taxation, examining it not only in reference to consumption in general in its totality, but also in relation to the consumption of each type of good whose taxation in itself could be identified as confiscatory and, consequently, unconstitutional. 322 CARLOS MARÍA LÓPEZ ESPADAFOR Bibliography Bosello, F. 1 9 5 9 . Costituzioni e tributi negli Stati della Comunità economica europea. Rivista trimestrale d i Diritto e proced ura civile 2 : 1 5 1 3 Cazorla Prieto, L. M. 2 0 0 0 . Derecho Financiero y Tributario (parte general). Navarra: Aranzadi. Del Federico, L. 2 0 1 0 . Tutela d el contribuente ed integrazione giurid ica europea, Contributo allo stud io d ella prospettiva italiana. Milano: Giuffrè. Falcon y Tella, R. 1 9 9 7 . La tasa suplementaria en el sector de la leche y de los productos lácteos: un impuesto confiscatorio y discriminatorio entre ganaderos. Quincena Fiscal 1 7 : 6 . Fregni, M.C. 1 9 9 8 . Obbligazione tributaria e cod ice civile. Torino: Giappichelli. García Dorado, F. 2 0 0 2 . Prohibición constitucional d e confiscatoried ad y d eber d e tributación. Madrid: Dykinson. La Rosa, S. 2 0 0 3 . Osservazioni sulle norme tributarie da inserire nel “Trattato costituzionale Europeo”. Rivista d i d iritto tributario IV: 1 1 2 . Maisto. G. 2 0 0 3 . Progetto Costituzione Europea. Appunti di lavoro. Rivista d i d iritto tributario IV: 1 3 2 . Marongiu, G. 2 0 0 3 . Costituzione Europea e principio di ripartizione dei tributi. Rivista d i d iritto tributario IV: 1 1 6 . Moschetti, F. 2 0 0 3 . La razionalità del prelievo ed il concorso alle spese pubbliche. In Le ragioni d el Diritto Tributario in Europa (Giornate d i Stud i per Furio Bosello), Università di Bologna, www.berliri.giuri.unibo.it. Naveira De Casanova, G. J. 1 9 9 7 . El principio d e no confiscatoried ad . Estud io en España y Argentina. Madrid: McGraw-Hill. Núñez Pérez, G. 1 9 9 1 . La prohibición constitucional de tributos confiscatorios: dos supuestos. Impuesto 2 2 : 8 . Palao Taboada, C. 1 9 7 9 . La protección constitucional de la propiedad privada como límite al poder tributario, in Haciend a y Constitución. Madrid: Instituto de Estudios Fiscales. Sainz De Bujanda, F. 1 9 8 7 . La Contribución Territorial Urbana. Trayectoria histórica y problemas actuales. Valencia: Consejo General de Cámaras de la propiedad urbana de la Comunidad Valenciana. Sánchez Serano, L. 1 9 9 6 . Principios de Justicia Tributaria, Capítulo IV del Manual General d e Derecho Financiero, Tomo Segundo, Derecho Tributario. Parte General. Granada: Comares. CHAPTER XVI THE LEGISLATION ON WASTE: RELATIONS AND INFLUENCES BETWEEN EUROPEAN LAW AND NATIONAL LAW Salvatore Mancuso SUMMARY: 1 . Introduction. –2 . The influence of European law on waste on national law. –2 .1 . General features. –2 .2 . The First Directive on Waste. Directive 7 5 /4 4 2 /CE. –2 .3 . Directive 9 1 /1 5 6 /CE and Directive 9 1 /6 8 9 /CE. – 2 .4 . Regulation 2 5 9 /9 3 and Regulation 1 0 1 3 /2 0 0 6 . – 2 .5 . Directive 2 0 0 6 /1 2 /CE and Directive 2 0 0 8 /9 8 /CE. –3 . The case-law of the European Court of Justice on waste. –3 .1 . The intervention of the European Court of Justice for application of European legislation on waste in Italy. –3 .2 . The definition of waste. –3 .3 . The definition of by-product. –3 .4 . Article 1 4 of Decree Law 1 3 8 /2 0 0 2 converted into article 1 4 of Statute 1 7 8 /2 0 0 2 . The authentic interpretation of the definition of waste. –3 .5 . Excavated earth and rocks. –4 . The European law and penalties on waste. –4 .1 . European law and criminal sanctions: the limits of the application of European provisions. –4 .2 . Directive 2 0 0 8 /9 9 /Ce. –5 . Economic crisis and waste law. Conclusions. 1 . Introd uction A few months ago my daughter Giulia came home from school and told me that her teacher, in the first grade, had already taught concepts such as waste and recycling. It seemed bold, in an age in which children hardly write and read. The teacher appeared so determined as to have even planned a guided tour of a waste sorting plant. In the first grade! Now, there is no doubt that the big question of waste, of its nature, its polluting effects on the environment and its management is today believed in Italy and in Europe to be a social issue to talk about in schools. It wasn’t so in the seventies, the period in which environmental matters started to be regulated at the European level. Anyway, the first main question is: can this socio-cultural fact be the result of the influence of European law on national law on waste? Maybe. 324 SALVATORE MANCUSO The second main question is: how has European law changed the customs and habits of citizens as well as companies? We also have to ask: if there had been since the seventies no European legislation on waste, in Italy would there still be awareness of the importance of this sociocultural issue? These considerations drive us to examine relationships and influences between the existing European legislation on waste and the Italian legislation. In particular, we will try to identify the significant elements of European legislation on waste and the critical aspects of the transposition into Italian law. 2 . The influence of European law on waste on national law 2 .1 General features European law has largely influenced Italian law on waste. This has occurred through the typical European acts: Directives and Regulations. Especially regarding waste, the European lawmaker has resorted to the Directive which, as is well known, is a normative act that, in establishing the principles and criteria that govern a certain matter, leaves the EU Member States free on the procedure of effective implementation in their internal legislation. At the same time the influence of European law on national law has occurred and continues to occur through the European Court of Justice, which is the supreme judge of European law. This Court –through its decisions –provides the correct interpretations of European law. Environmental matters in general and waste in particular have very frequently been the subject of interventions by the European Court of Justice to verify compliance of Italian legislation with that of Europe. Through this incessant work the European Court of Justice has addressed the Italian lawmaker, and also Italian judges, to a correct interpretation of the law on waste, sometimes frustrating their natural desires for autonomy. But we know that harmonization has its disadvantages. In the Italian legal system, by the way, it is now established that in cases of conflict between national and European rules, the national ones, while not being formally repealed, must be set aside. Back in 1 9 9 2 the Consiglio di Stato wrote that there is a legal obligation of implementation of European law for all entities which are obliged to implement law, in particular the judicial and administrative authorities1 . Sometimes the European Court of Justice criticizes the limited capacity of the Italian lawmaker to make a proper and faithful 1 Consiglio di Stato, Section II, opinion 1 3 .5 .1 9 9 2 . XVI. Legislation on Waste: Relations and Influences Between European Law... 325 transposition of European provisions in internal rules. Actually, it is not always an inability because sometimes the Italian lawmaker is determined to circumvent the full and correct transposition of European standards. This is facilitated by the fact that in Italy, as everybody knows (Amendola 2 0 0 3 , 5 9 ), there exists a NO-WASTE cross-party –which is always in government –ready to play with interpretation of European legislation, and going so far as to introduce in the Italian legal system rules designed to exclude certain categories of substances from waste legislation. It is the case, for example, of excavated earth and rocks, which have been repeatedly excluded from the obligations arising from legislation on waste management. Despite all this, the European Court of Justice supervises and often intervenes –although with the long times of justice –to restore order and to indicate the correct interpretation of European law so as to really influence the internal law and, consequently, good practices. 2 .2 The First Directive on Waste. Directive 75/442/CE As we know, the purpose of European legislation is to harmonize the domestic legislation of the EU Member Countries so as “to avoid situations of unequal conditions of competition between businesses” (Paone 2 0 0 8 , 2 ). The environment was one of those areas where the differences between the legislations of the Member Countries of the European Community were perceived as major ones. These differences inevitably produced situations of inequality between companies belonging to the same production sector with regard to the costs of environmental management. As this led to distortion in competition between companies, it was seen as necessary to work towards harmonization of regulations of the European Community Member Countries. The need for harmonization between the EC Member Countries’ legislations was strongly felt in the waste sector. With the enactment of Council Directive 1 5 July 1 9 7 5 no. 7 5 /4 4 2 /CE, the harmonization process initiated. The 1 9 7 5 Directive lays down guidelines to ensure protection of the environment against adverse effects resulting from collection, transport, storage and treatment of waste. With Directive 7 5 /8 1 9 of 2 0 March 1 9 7 8 toxic and hazardous waste was also governed. Both Directives were transposed in Italy with Decree of the President of the Republic 9 1 5 /1 9 8 2 on so-called toxic-harmful waste. In fact, already in the act of transposition of the first Directive, the Italian lawmaker amended the definitions provided in the European legislation, in particular the key definition, that of waste. The fact is that if waste, for the Directive, is any substance or object which the holder discards or is required to discard under current national legislation, under Decree of 326 SALVATORE MANCUSO the President of the Republic 9 1 5 /8 2 waste shall mean any substance or object produced by human activities or natural cycles which is abandoned or destined to be abandoned. We can see at once the difference in terminology between the two definitions and the use of the verb ‘abandon’ rather than ‘discard’. We have to say that the Italian definition of waste tends to delimit the scope while the European definition appears wider despite its undeniable vagueness. Another important concept provided by the Directive of 1 9 7 5 , d isposal, was defined as the collection, sorting, transport and treatment of waste as well as its storage and storage thereof on or in the ground. Decree of the President of the Republic 9 1 5 /8 2 in the definition of d isposal also encompasses the concept of recovery, thus making the definition broader. And if Directive 7 5 /4 4 2 /CE makes no classifications of waste, on the contrary Decree of the President of the Republic 9 1 5 /8 2 enumerates three categories of waste, urban waste, that is waste from houses; special waste that derives from production; and toxic and hazard ous waste, that is contaminated waste. 2 .3 Directive 91/156/CE and Directive 91/689/CE About fifteen years after the first European Directive on waste, the need was felt for reform; so the European lawmaker updated both the general legislation on waste and that on specific hazardous waste. In 1 9 9 1 Directive 9 1 /1 5 6 /EC and Directive 9 1 /6 8 9 /EC were issued. The first one fully reforms Directive 7 5 /4 4 2 /EC. The definition of waste becomes any substance or object which the holder discards or intends or is required to discard in the categories provided in Annex 1 . In essence, it provides a definition of waste centring on the concept of discard but still referring to all substances listed in the Annex. In the same Directive the European lawmaker entrusted the European Commission with drawing up a catalogue of waste. However, the new and significant concept is waste management. Management includes collection, transport, recovery and disposal. The concept of d isposal is to be equated with the elimination of waste, as a new concept is identified, recovery, which means regenerating waste for the purpose of its further use. Definitions of prod ucer and hold er of waste were introduced. Authorization procedures were established for those who wish to create installations for disposal or recovery; the obligation was also established to register with the competent authorities for those collecting and transporting waste on behalf of third parties. But there are also simplified procedures for waste management authorizations. Directive 91/689/ EC regulates hazardous waste. Domestic waste is never considered as hazardous waste. In this Directive many provisions impose prohibitions and general obligations regarding hazardous waste management. XVI. Legislation on Waste: Relations and Influences Between European Law... 327 The 1 9 9 1 European Directives were only implemented in Italy in 1 9 9 7 through the famous Legislative Decree no. 2 2 /1 9 9 7 , called the Ronchi Decree. This legislation is entirely centred on the concept of waste management (Costato and Pellizzer 2 0 1 2 , 5 8 3 ff). It’s considered the first Italian statute having purely environmental purposes in the sense that every provision aims to protect the environment and prevent pollution (Butti 2 0 0 2 , 1 5 7 6 ). This is done by introducing the concept of management, which obliges the producer of the waste to put in place a number of tasks directed to preserve the waste and to prevent that waste becoming a source of pollution. Management tasks are also qualified as an activity of public interest. Waste management responds to the polluter-pays principle, which means that the person who by his or her own action generates pollution must bear the running costs, including financial ones (Crosetti et al. 2 0 0 2 , 3 8 ). In terms of penalties the Ronchi Decree introduces a number of both administrative and criminal sanctions. The same regulatory framework is kept concerning authorizations for installations for waste disposal or recovery but it should be noted that simplified procedures are introduced in both cases of self-disposal and waste recovery. The licensing requirement for those engaged in professional waste management is replaced with an obligation to enrol in a register called Register of waste managers. In the Ronchi Decree there is also inserted the definition of temporary storage although the European Directives have never mentioned it. This is storage in the place of waste production; it is possible to keep it –without express authorization – in compliance with certain requirements of time, space and any hazardous characteristics of the waste. It’s one of the hallmarks of Italian legislation on waste with respect to European legislation. Finally we must remember that the Ronchi Decree has undergone several changes, even substantial ones, that have altered its content. This legislation was finally merged in Part Four of Legislative Decree 1 5 2 /2 0 0 6 . called the Environmental Cod e. 2 .4 Regulation 259/93 and Regulation 1013/2006 It must be said that cross-border waste shipment is one of the few areas where the European lawmaker on waste has intervened through the EU regulation. Harmonization of Member Countries’ legislations was not sufficient in this area; the direct introduction of detailed rules in the legal systems of the Member Countries was necessary. This made the legislation itself more effective and operational. The first Regulation is 2 5 9 /9 3 ; this was then repealed by Regulation 1 0 1 3 /2 0 0 6 , which carried out a reform of the sector. It must be said that the scope of application, as stated by the new Regulation at Article 1 , is the establishment of “procedures and control regimes for the shipment of waste, depending on the origin, destination 328 SALVATORE MANCUSO and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination”. The goal is to create a system of rules, obligations of information between the Member States as well as a system of permits to allow, for all kinds of transport, to have control of waste from source to destination so as to prevent uncontrolled transport causing environmental pollution. 2 .5 Directive 2006/12/CE and Directive 2008/98/CE Directive 2 0 0 6 /1 2 /EC aims to give order to the numerous provisions that entered into force with various Directives which altered the contents of the first Directive on waste. For this reason the first Directive on waste, no. 7 5 /4 4 2 /CE, was expressly repealed. Shortly after, the need was felt of a large redesign of European legislation on waste, having to emphasise elements such as the recovery of the material or the change of definition of waste. So Directive 2 0 0 6 /1 2 /EC was also quickly repealed by Directive 2 0 0 8 /9 8 /EC. The sixth whereas states that “the first objective of any waste policy should be to minimise the negative effects of the generation and management of waste on human health and the environment. Waste policy should also aim at reducing the use of resources, and favour the practical application of the waste hierarchy”. With European Directive 2 0 0 8 /9 8 /EC –implemented in Italy in 2 0 1 0 through Legislative Decree 2 0 5 /2 0 1 0 amending Part Four of the Legislative Decree 1 5 2 /2 0 0 6 –new standards and objectives were introduced. The new aspects of the latest European Directive on waste are as follows: a) the principle of extend ed prod ucer responsibility; in substance, as stated in the 2 7 th whereas “The introd uction of extend ed prod ucer responsibility in this Directive is one of the means to support the d esign and prod uction of good s which take into full account and facilitate the efficient use of resources d uring their whole life-cycle includ ing their repair, re-use, d isassembly and recycling without compromising the free circulation of good s on the internal market”. The aim of the Directive is to extend responsibility for waste management, by virtue of the known polluter pays principle, to all those who have a role in production of or trade in goods; b) the recycling society, having essentially to avoid the production of waste and use waste as a resource; c) to provide clear distinctions between waste, by-products and substances that cease to be waste; d ) to provide an adequate distinction between recovery and disposal. The focus on the life cycle of products is the hallmark of the Directive; the goal is to reduce the overall environmental impact of products which are inevitably destined to become waste, with a view to managing the product from crad le to grave (Chilosi 2 0 1 2 ). XVI. Legislation on Waste: Relations and Influences Between European Law... 329 3 . The case-law of the European Court of Justice on waste 3 .1 The intervention of the European Court of Justice for application of European legislation on waste in Italy Now, it must be said that the European Court of Justice has played a significant role for the unambiguous interpretation of European law on waste. The European Court of Justice had targeted both the failure to implement and the delay in transposing European standards, that failure to achieve practical application of European standards implemented with the national standards and provisions. This has often determined unfavourable decisions for Italy as a result of lengthy European infringement procedures. While the NO WASTE cross-party in Italy has done much to prevent the proper application of European standards, it should also be noted that the European provisions have not always been easy to read and interpret. Certain ambiguities in the definitions contained in the EU Directives on waste have inevitably fostered transposition not in line with the objectives and principles of European law on waste. The very definitions of waste, management, by-prod uct, d isposal and recovery were not stated unequivocally, thereby favouring distorted readings. It is no coincidence that the Directives that have followed one another in the decades since the first Directive of 1 9 7 5 have done nothing to clarify, correct and amend the definitions that are, as always when we deal with law matters, the pillars on which legal systems rest. 3 .2 The d efinition of waste At a closer look the definition of waste is difficult to interpret. Indeed, if we only consider the definitions contained in the main waste Directives we witness constant changes in that definition. For the 1 9 7 5 Directive waste is “any substance or object which the hold er d iscard s or is required to d iscard und er current National legislation”; for the 1 9 9 1 and the 2 0 0 6 Directives waste is “any substance or object in the categories set out in Annex I which the hold er d iscard s or intend s or is required to d iscard ”; in Directive 2 0 0 8 /9 8 /EC waste is “any substance or object which the hold er d iscard s or intend s or is required to d iscard ”. There is no denying that the difficulty of understanding what waste is has made possible and almost legitimized the most varied practices that have arisen in the industrial sector, which is the main target of waste legislation. The European Court of Justice has had repeatedly to intervene to restore order to waste interpretation. We may certainly say that we may understand what waste is only thanks to the decisions of the Court. Everything focuses on the concept of ‘discard’. Before Directive 2 0 0 8 /9 8 /EC, which amended the definition of waste, d iscard concerned the substances listed in the European Waste Catalogue (EWC) annexed to the Directives. Therefore, a literal interpretation gave the impression that what was necessary was not only the action (or the obligation or the decision) 330 SALVATORE MANCUSO to d iscard but also that the substance to consider as waste was inserted in the EWC. The European Court of Justice used the EWC as a mere instrument of clarification for operators. In the famous Tombesi 1 9 9 7 C3 0 4 /9 4 judgment, the European Court of Justice ruled that the fact that a substance is listed in the EWC does not mean that it is in any case waste; and in other decisions the Court stated that waste could also be a substance not included in the EWC, pointing out in this way that really any substance or object may become waste as long as its holder discards it. The definition of waste must be seen broadly, according to the decision of the European Court of Justice; but it is undeniable that the EU definition –both that contained in the first Directive on waste and the current one –despite the lexical restyling, appears slippery and unwieldy for lawyers. What is waste really, then? The rationale behind the system of rules on waste comes in handy: the purpose of protection of the environment (and human health). It’s appropriate to recall what an authoritative author says: “In essence, then, the term ‘discard’ (which determines what waste is) must be interpreted broadly, and with reference to the potential impact on the environment ..”. (Amendola 2 0 0 3 , 8 6 ). In fact, what worries the European lawmaker is the possibility that a person, the holder of something that no longer has any use for him or her directly –and having then to discard it in some way –may try to do so without complying with the requirements of environmental protection; and, therefore, the lawmaker categorizes this ‘something’ as ‘waste’ and submits it to regulation and control ‘from cradle to grave’ (Amendola 2003, 86). The bottom line could be this: the European lawmaker wants to make sure that no substance that is potentially harmful to the environment can be out of control and then not properly handled by the holder. For this reason, everything is potentially destined to become waste. In our opinion the European legislation on waste should be seen more as a system of rules of closure; in other words rules that tend to discourage negligence in management of goods and substances by its holder. The holder should know that if he or she does not adequately manage and preserve a substance, it may be qualified as waste; therefore the holder will bear all the obligations and the related costs, also incurring criminal or administrative sanctions in case of failure or improper management. The broad interpretation of the definition of waste hence led the European Court of Justice to assert that waste must not be seen as excluding from its content substances and objects capable of economic reutilization as well as substances that can be traded commercially or are quoted on the stock exchange (Tombesi decision). The Court of Justice further affirmed that national legislations that adopt a definition of waste excluding substances and objects capable of economic reutilization are not compatible with EU guidelines2 . And in 2 Decision by the European Court of Justice March 2 8 , 1 9 9 0 C-3 5 9 /8 8 Zanetti and decision on May 1 0 1 9 9 5 C-4 2 2 -9 2 . XVI. Legislation on Waste: Relations and Influences Between European Law... 331 the decision of December 1 8 , 1 9 9 7 C-1 2 9 /9 6 , the Court also stated that residues from industrial production to be reused in the same production process may be waste. The huge problem of waste production and qualification impassions interpreters of European legislation; much less passionate are businesses that have had to endure years of interpretative uncertainty pending the gestation of the rules on by-products. 3 .3 The d efinition of by-prod uct The difficulty of reconciling the needs of environmental protection underlying the European legislation on waste and the practical needs of companies in the industrial sector has spurred a long reflection on the applicability of waste legislation to those substances that in a production process are not the direct object of the residues of the production. How do we qualify these substances? Are they waste? But one wonders: why burden the industrial companies with operating costs related to the implementation of waste legislation where such substances are real products, which are also traded or used as raw material in the production process in which they were generated? It was the European Court of Justice, in the absence of a legal definition of by-prod uct, that developed some principles: 1 ) Production residues in principle are to be considered as waste; 2 ) Production residues that are even products, open to trade, cannot be considered as waste if their reuse is certain, if it takes place entirely without treatment and during the same manufacturing process; 3 ) Submitting a substance to a kind of recovery inserted in the Annex to the Directive on Waste does not in itself make it possible to qualify it as waste. The long labour of interpretation of the European judges has resulted, however, in the statutory definition of by-product contained in Article 5 of Directive 2 0 0 8 /9 8 /EC. It is not so much a definition as a list of conditions that enable a production residue not to be classified as waste. Article 5 states: “a substance or object, resulting from a production process whose primary purpose is not the production of that item cannot be considered as waste in accordance with Article 3 , paragraph 1 , but only if the following conditions are fulfilled: a) further use of the substance or object is certain; b) the substance or object can be used directly without any further processing other than normal industrial practice; c) the substance or object is an integral part of a production process; d) further use is lawful, i.e. the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental and human health impacts”. This standard was fully transposed in article 1 8 5 legislative decree 1 5 2 /2 0 0 6 . The by-product is therefore a substance that is generated as a production residue, but it’s a product itself, an asset which the holder does not intend to discard in the sense that usefulness of that substance 332 SALVATORE MANCUSO for the holder is not lacking. The usefulness for the holder seems a relevant element to distinguish waste from by-product (De Sadeleer 2 0 0 6 , 3 8 ). The difficulty lies in distinguishing the by-product from secondary raw material. The latter is also a production residue but unlike the byproduct is waste; in fact, only after specific treatment does it become a product and a marketable commodity. The treatment that the secondary raw material undergoes is not the same treatment that the by-product undergoes; the by-product is subjected to a treatment that happens in normal ind ustrial practice and must therefore be a minimum intervention that does not change the structure, the substance and the quality of the product. 3 .4 Article 14 of Decree Law 138/2002 converted into article 14 of Statute 178/2002. The authentic interpretation of the d efinition of waste The situation that more than any other sums up the conflict between the European and National legislations, and that also concerns the dynamics of supremacy of European law over National law of the Member State, is related to the introduction in Italy of an authentic interpretation of the definition of ‘waste’. As is well known, authentic interpretation is an attempt of the lawmaker to provide, with a subsequent legislative provision, the description of the correct interpretation to be given to a rule already introduced in the legal system. This is generally done to limit the action of interpretation of the case law that differs from the interpretation of the rule that the lawmaker intended to give. With Article 1 4 of Decree Law 1 3 8 /2 0 0 2 converted into article 1 4 of Statute 1 7 8 /2 0 0 2 , the Italian lawmaker sought indeed to exclude from the application of definition as waste production residues that can actually be reused in the same or a similar or different production cycle as long as not subjected to any preventive treatment and still not harming the environment. But it was also established in the second paragraph, letter b), that the production residue cannot be qualified as waste if it is reused in the same or a similar or different production cycle and also if it has not undergone any prior recovery treatment not inserted in Annex C of the Ronchi Decree. In this case, however, the Italian Lawmaker decided to go beyond his powers of implementation of European law, deliberately not considering that in the case of interpretative uncertainty about European regulations, and therefore on the concept of waste, it is the European Court of Justice that provides authentic interpretations, as the supreme interpreter of Community law. It is true that a Member State and then a national lawmaker may transpose Community legislation by including changes that do not alter the substance of the European provisions. As regards the definition of waste, which as we know has to be interpreted broadly, XVI. Legislation on Waste: Relations and Influences Between European Law... 333 the Italian lawmaker can only introduce rules that expand and do not limit its scope. Following the introduction of this article, which actually contains several provisions, the difficult cohabitation of these rules with the Community law framework was immediately perceived by experts and judges. Among other things, the fact that the Italian lawmaker used a Decree-Law to introduce these provisions was widely criticized. We know well that in this case a Decree-Law does not meet the conditions of necessity and urgency that legitimize, pursuant to Article 8 8 of the Italian Constitution, the enactment of a Decree-Law; this is even truer when we consider the limited circumstances in which such conditions occur, as has long been determined by the Italian Constitutional Court. Inevitably, the European Commission opened an infringement procedure against Italy, which finally led to the ECJ judgment of 1 1 .1 1 .2 0 0 4 C-4 5 7 /0 2 ascertaining the clash between the Italian provisions and the European ones. In Italy the authentic interpretation of ‘waste’ was submitted to verification before the Constitutional Court. But the Italian lawmaker wisely introduced Article 2 6 4 , first paragraph, of Legislative Decree 152/2006, which formally repealed Article 14 of Decree Law 1 3 8 /2 0 0 2 , converted into Article 1 4 of Statute 1 7 8 /2 0 0 2 . 3 .5 Excavated earth and rocks There are some subjects that more than others give rise to a vivid contrast between the European and the Italian lawmakers. One of these is the regulation regarding excavated earth and rocks. For decades there has been a regular attempt to introduce in Italy some rules designed to exclude excavated earth and rocks from the requirements of waste management. It must be said, in order to clear up misunderstandings, that the scope of the provisions on excavated earth and rocks is so wide and varied that there are compelling reasons in both parties, the one that wants to exclude such materials from the scope of application of waste legislation and the party that intends to include it. It’s clear that the legislation in question concerns both major works such as the so-called Alta Velocità (construction of high-speed railways) and excavations and works of little consequence. The first European Directives on waste did not provide exclusions from the applicability of waste legislation for excavated earth and rocks. In Italy, even with the Ronchi Decree, the lawmaker provided for exclusion from the rules on waste “non-hazard ous materials that d erive from excavation”. This exclusion resulted in an infringement procedure promoted by the European Commission. But the Italian lawmaker intervened in 1 9 9 7 to repeal this provision. With Article 1 0 of Statute 9 3 /2 0 0 1 there was then introduced a letter f-bis Article 8 paragraph 1 of the Ronchi Decree excluding from waste “earth and rock excavation intend ed for actual use 334 SALVATORE MANCUSO for filling, backfilling, embanking or as aggregates, with the exception of materials from contaminated and d econtaminated sites with a concentration of pollutants above the acceptable limit set by current regulations …” With the subsequent Statute 4 4 3 /2 0 0 1 , called the Lunard i Statute, it is succinctly stated that “earth and rock excavation, also of tunnels, are not waste ..”., and it is pointed out that even contaminated excavated earth and rocks are not waste as long as the contamination does not exceed the legislation’s limits. With the judgment of the European Court of Justice, 1 8 .1 2 .2 0 0 7 C1 9 4 -0 5 Italy was convicted of violating the Community’s obligations under the Lunardi Statute. However, in the same judgment, the European Court, in response to the observations of the Italian State, which had revealed the by-product nature of earth and rock excavation, states what elements occur for a byproduct: “Therefore, in ad d ition to the criterion of whether or not the resid ual prod uction of a substance, the d egree of likelihood of reusing the substance, without any prior treatment, constitutes a relevant criterion for assessing whether or not that substance is waste within the meaning of the Directive. If, beyond the mere possibility of reusing the substance at issue, there is an economic ad vantage to the hold er in so d oing, the likelihood of reuse is high. In such circumstances, the substance in question must no longer be regard ed as a burd en which its hold er seeks to ‘d iscard ’, but as a genuine prod uct” (see Palin Granit, paragraph 3 7 , and Niselli, paragraph 4 6 ). However, if such reuse requires storage operations which may have a certain duration, and therefore represents a burden to the holder and may cause environmental damage that the Directive seeks to reduce, it cannot be described as a certainty and is foreseeable only in the longer or shorter term. Accordingly, the substance in question must be considered, in principle, as waste (Palin Granit, paragraph 3 8 , and AvestaPolarit Chrome, paragraph 3 9 ). In essence, the Court points out that the rule appears to have overly broad contours so that this would allow exclusions that would be contrary to EU principles. It should however be noted that precisely in this judgment those items can be recognized that will be better expressed in Directive 2 0 0 8 /9 8 /EC amending the legislation on waste and that will materialize in the provision contained in Article 2 , first paragraph, letter c, where we read that the scope of the Directive excludes “uncontaminated soil and other naturally occurring material excavated in the course of construction, where it is certain that the material will be used for purposes of construction in its natural state on the site where it was excavated ”. In whereas no. 1 1 the same Directive states that “the waste status of uncontaminated excavated soils and other naturally occurring material which are used on sites other than the one from which they were excavated should be consid ered in accord ance with the d efinition of waste on the provisions on by-prod ucts or on the end of waste status und er this Directive”. The Directive opens up the possibility of use of earth and rock excavation in different sites than those in which they are excavated, but these should be regarded as by-products. XVI. Legislation on Waste: Relations and Influences Between European Law... 335 The concrete case of earth and rock excavation can teach us that the internal regulations of the Member States and Italy in particular are very useful for improvement of the European legislation. In fact, when the European Court of Justice intervenes to suppress situations of noncompliance of national legislation transposing European law, it is required to provide the correct interpretation of existing legislation, thereby playing a significant nomophylactic function. It is certainly true therefore that the EU Member Countries’ legislations on waste sometimes even indicate, in advance of the European lawmaker, the margins and the areas for improvement of the legislation in place. 4 . The European law and penalties on waste 4 .1 European law and criminal sanctions: the limits of the application of European provisions The recognized primacy of European law over the national law of the EU Member States and thus over Italian law was previously mentioned. However, significant problems arise with criminal provisions. It’s well known that European law does not establish criminal provisions as the Directives simply indicate conducts that the Member State is obliged to sanction with its internal rules. It must be said that no problems of compatibility between European law and the National law exist when the internal criminal rules recall European provisions in their content. The problem arises in situations where the criminal law is subject to interpretation in line with European law. In some cases this could lead to situations of indeterminacy of criminal conduct that would certainly be incompatible with our Criminal Code and above all with the Italian Constitution. It is true that the substantive content of criminal provisions in some cases is interpreted broadly by the Italian courts so as to ensure effective compliance with European law. However, both the European Court and the Italian Supreme Court have repeatedly stated that “a sanction may be imposed only when it has a clear and unambiguous legal basis”. Hence interpretation of a provision of national law in a manner consistent with the European dictates “meets a limit if it has the effect of determining or aggravating, under the Directive and in the absence of a law enacted for its implementation, the criminal liability of those who act in contravention of the provisions”. My opinion is that the principles of criminal law such as the mandatory and the necessary determination of criminal precepts therefore require a case-by-case assessment of the legitimacy of a broad interpretation of European law. This must be done because the broad interpretation of European legislation is likely to sacrifice fundamental human rights such as the right to personal liberty. 336 SALVATORE MANCUSO 4 .2 Directive 2008/99/Ce The latest Directive that introduces principles and criteria related to criminal la on environmental matters and particularly on waste is Directive 2 0 0 8 /9 9 /CE. The Directive is called “on the protection of the environment through criminal law”. It establishes the criteria to follow to introduce criminal offences in the EU Member Countries’ legal systems. In particular at Article 3 we read that “Member States shall ensure that the following cond uct constitutes a criminal offence, when unlawful and committed intentionally or with at least serious negligence”. About criminal offences on waste the Directive states that “(b) the collection, transport, recovery or d isposal of waste, includ ing the supervision of such operations and the aftercare of d isposal sites, and includ ing action taken as a d ealer or a broker (waste management), which causes or is likely to cause d eath or serious injury to any person or substantial d amage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (c) the shipment of waste, where this activity falls within the scope of Article 2 (3 5 ) of Regulation (EC) No 1 0 1 3 /2 0 0 6 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (1) and is und ertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked ”. It must be said that the transposition occurred in Italy very recently, through Statute 6 8 /2 0 1 5 , which caused a heated debate among experts about the provision inserted in the Penal Code at Article 4 5 2 ter called “Environmental disaster”. The debate grows more heated with regard to the term used by the Italian lawmaker, who said that criminal conduct should be ‘abusive’ and not simply as the Directive says “unlawful and committed intentionally or with at least serious negligence”. What has happened confirms once again that the Italian lawmaker often transposes in a softer way the European rules on waste. 5 . Economic crisis and waste law. Conclusions Another aspect that needs to be pondered on is whether waste legislation and, in particular, the complex management obligations and the costs related to these obligations are now a burden that industrial producers and European companies can still bear. In other words, since waste management is an economically challenging activity –and this is confirmed by countless attempts to circumvent the rules on waste –we wonder whether today it is not too burdensome for European companies. Therefore we have to wonder if the EU policy should enact reforms that take into account new types of exclusion from legislation on waste or mitigation standards of management charges. And it’s conceivable that some producers to save the cost of recovery/disposal of waste, can decide, for example, not to observe the management obligations, also committing environmental crimes such as illegal disposal of waste. XVI. Legislation on Waste: Relations and Influences Between European Law... 337 This will allow these producers to bear lower costs, at the expense, of course, of the community, as the environment will be more degraded. In situations of economic crisis such as the one that still exists in Europe and in Italy in particular, there is a high probability that a company may decide to eliminate environmental costs such as waste management, while committing illegal acts with the risk of incurring sanctions. What can the solution be to prevent similar conduct? And is the fear of sanctions an effective deterrent? Probably not. Certainly European policy on waste will have to find answers, for example in forms of regulatory relief management and fiscal incentives for businesses that are proactive in the environmental sector. However, our feeling is that in parallel with the growth of greater eco-consciousness among young people with keen attention and sensitivity to environmental issues thanks to educational centres such as schools, there is also a growing sense of disillusionment and distrust of the ability of individuals to affect the conditions of the environment. Probably European law on the environment and waste in particular, permeating the domestic law of the EU Member States, has pushed people towards greater sustainability of lifestyle and consumption; but it is equally true that the production world is still suffering from the uncertainty of environmental laws and still regards European environmental legislation as a burden and not as a competitive chance. I repeat that waste could be a competitive chance as we know that nothing was born from diamonds but flowers come from manure. Bibliography Amendola. G. 2 0 0 3 . Gestione d ei rifiuti e normativa penale. Milano: Giuffrè. Butti, L. 2 0 0 9 . Cod ice d ell’ambiente, ed. L. De Cesaris e S. Nespor, 3 rd ed. Milano: Giuffrè. Chilosi, M. 2 0 1 2 . Responsabilità estesa d el prod uttore d el bene e d el rifiuto. Milano: Osservatorio Codice dell’Ambiente. Costato, L. and F. Pellizzer. 2 0 1 2 . Cod ice d ell’ambiente. Padova: CEDAM. Crosetti, A., R. Ferrara, F. Fracchia and N. Olivetti Rason. 2 0 0 2 . Diritto d ell’ambiente, 4 th ed. Bari: Laterza. De Sadeleer, N. 2 0 0 6 . Rifiuti, prod otti e sottoprod otti. Milano: Giuffrè. Fracchia, F. and M, Occhiena. 2 0 0 6 . I sistemi d i certificazione tra qualità e certezza. Milano: EGEA. Iraldo, F. 2007. Ambiente, impresa e d istretti ind ustriali, 7 th ed. Milano: Franco Angeli. Lugaresi, N. 2 0 0 4 . Diritto d ell’ambiente. Padova: CEDAM. Margiotta, S. 2 0 0 6 . La riforma della legislazione ambientale. Amb. e Sic. Milano: Il Sole2 4 ore. Paone, V. 2 0 1 0 . La tutela dell’ambiente e l’inquinamento dei rifiuti. Milan: Giuffrè. Peres, F. 2 0 1 1 . Contribution to Cod ice d ell’ambiente, ed. L. De Cesaris e S. Nespor, 4 th ed. Milano: Giuffrè. Ramacci, L. 2 0 0 9 . Diritto penale d ell’ambiente. Padova: CEDAM. Santoloci, M. and F. Rocca. 2 0 0 2 . Prontuario d egli illeciti ambientali, 2 nd ed. Piacenza: La Tribuna. C H A P T E R XVII MUNICIPAL SOLID WASTE MANAGEMENT: ISSUES AND PERSPECTIVES Gaspare Viviani - Giorgio Mannina SUMMARY: 1 . Introduction. –2 . Solid waste characteristics. –3 . Waste, by-products, EOW. –4 . The waste management hierarchy. –5 . Integrated waste management systems. –6 . Solid waste management in Italy. –7 . Issues and proposal for waste management. –8 . Final remarks. 1 . Introd uction Nowadays Municipal Solid Waste (MSW) management entails several issues almost all related to different steps of the MSW lifespan (i.e., production, collection, transport, recovery and disposal). European Directive no. 2 0 0 8 /9 8 /EC (2 0 0 8 ) established some general principles that have to be guaranteed for environmental protection as well as for setting up sustainable MSW management circuits from a social and economic point of view. The Directive was transposed into Italian laws, but since the end of the 9 0 s Italy has adopted a regulation on waste management that focus particularly on recovery of waste. In fact Decree 2 2 /9 7 (the ‘Ronchi Decree’) established the CONAI system of separate waste collection, which defined the principle of shared responsibility in the recovery or disposal of packaging. The principles fixed in the EC Directive have been reflected for some decades in MSW integrated management systems which, starting from the definition of the material recovery goals that are established for the main MSW fractions of interest, fixes the organizational and technical rules for separate collection, material and/or energy recovery and disposal for the recycled and residual waste fractions. Such schemes are based on well-consolidated principles, which are adopted by several national and international entities of different sizes in terms of inhabitants served. However, there are some critical issues which characterize such schemes; they are correlated to the economic sustainability of the separate collection measures and to the environmental standards that have to be respected by the treatment and disposal plants. 340 GASPARE VIVIANI - GIORGIO MANNINA In this paper, the main characteristics of waste production and management in Italy and other European countries are presented. Further, the major goals and critical aspects will be discussed. 2 . Solid waste characteristics Production of solid waste in Italy is around 1 7 0 x1 0 9 kg/year. This value can be broken down as 2 0 % (3 0 x1 0 9 kg/year) ‘urban waste’ and 74% ‘special waste’; the latter regards activities of construction, demolition and manufacturing; finally, hazardous waste forms the remaining 6 % (ISPRA 2 0 1 9 a and 2 0 1 9 b). Focusing on solid wastes from domestic sources, in the last 1 0 years, their production has been reduced by around 7 % (Fig. 1 ); however, this is due to the decrease in consumption resulting from the economic crisis rather than to virtuous choices aimed at disengaging economic growth from production of waste. Fig. 1 –MSW production trend in Italy, 2 0 0 2 -2 0 1 8 (ISPRA 2 0 1 9 b) This is confirmed by the comparison of waste production and GDP (Gross Domestic Product), which is one of the leading economic growth indicators (Fig. 2 ). Comparison between the Italian condition and that of other EU Countries (Fig. 3 ) shows that the production of MSW in Italy is close to the average of the EU28 Countries, although much higher than the average value of the new countries that joined the EU after 2 0 0 3 (NMS: New Member States), confirming lower production of waste by these countries as a result of their lower GDP (Eurostat 2 0 1 8 ). XVII. Municipal Solid Waste Management: Issues and Perspectives 341 Fig. 2 –MSW production and GDP (Gross Domestic Product) trend in Italy, 2 0 0 2 -2 0 1 4 (ISPRA 2 0 1 9 b) Fig. 3 –Per capita MSW production in the EU Countries, 2 0 1 6 (Eurostat 2 0 1 8 ) Regarding the composition of municipal waste (Fig. 4 ), the analysis of the waste components conducted over the years shows a progressive reduction of the percentage by weight of the organic fraction of food origin with respect to the increase of the cellulosic and plastic fractions. This is clearly due to the increase of the packaging in paper and plastic used for the transportation and marketing of foodstuffs and consumer goods. As consequences of these changes, a general moisture reduction of waste derives, compared with a corresponding increase in the energy content. 342 GASPARE VIVIANI - GIORGIO MANNINA Fig. 4 –MSW composition in Italy, average in the period 2 0 0 8 -2 0 1 8 (ISPRA 2 0 1 9 b) 3 . Waste, by-prod ucts, EOW Directive 2 0 0 8 /9 8 /EC, in addition to the conditions involving a substance or product downgraded as ‘waste’, defines the concept of ‘byproduct’ and ‘end of waste’ (Fig. 5 ). In particular, it is clarified that any substance or object which the holder disposes of or intends or is required to dispose of is defined ‘waste’; in general, therefore, the condition which involves the passage from a substance/product to waste is not, as it would be natural to think, a deterioration in its quality, but rather non-use for the purpose for which it was designed or intended. However, a substance/product that has already been used cannot become waste, thus assuming the rank of ‘by-product’, when the following four conditions are met: it is a production residue; there is a certain reuse; a direct use (i.e. without any further processing); and a lawful use (i.e. without negative consequences for human health and the environment). In practice, fulfilment of these conditions ensures the absence of the condition necessary for a substance to produce waste (i.e., unwillingness to dispose of the waste). Also, the by-product should not require transformation treatments and must have market conditions that should ensure no risk that this definition can hide forms of illicit waste management. The criteria to consider specific types of substances or objects as byproducts are determined by specific laws (for Italy an example is the Decree of the President of the Republic no. 1 2 0 /2 0 1 7 for excavated earth and rocks). XVII. Municipal Solid Waste Management: Issues and Perspectives 343 Fig. 5 –Waste, by-products and EOW connection for Directive 2 0 0 8 /9 8 /EC As discussed above, in the case in which even one of the four conditions defined before is not observed, there is production of waste. However, waste can exit from this condition following a recovery action; this situation, which causes the end of waste status (EOW: End Of Waste) and the establishment of a ‘secondary raw material’ (SRM), although of a different type from the one that produced the waste itself (it is the case of compost or RDF), requires respect for four conditions: use of the recovered material for specific purposes; the existence of a certain market; compliance with technical requirements and quality criteria; and finally the absence of adverse environmental or human health impacts of reuse. Therefore a substance or product that will become ‘waste’ (so that it does not meet one or more conditions to be a by-product), may stop to be such after being subjected to a recovery operation. Recovery can vary from simple verification activities of compliance of the waste with the conditions mentioned above (e.g. returnable bottle for glass) to a task of selection and transformation in special plant (e.g. composting). To this end, the JRC (Joint Research Centre) was commissioned by the EU to draw up specific regulations to establish criteria for the EOW, as the basis for those of member countries. The criteria for the EOW should take into account not only the quality of the material produced and its compatibility with human health and the environment, but also its economic attractiveness and potential of the market concerned, in order to avoid unnecessary production and risk of final landfill disposal, which obviously would have a higher overall impact than direct disposal without recovery. The EU has already issued EOW regulations for special waste fractions (materials based on copper, glass, scrap metals); in Italy the first regulation issued was Decree 2 2 /2 0 1 3 , concerning RDF (Refuse Derived Fuel), in Italian called CSS (Combustibile Solido Secondario). 344 GASPARE VIVIANI - GIORGIO MANNINA 4 . The waste management hierarchy Directive 2 0 0 8 /9 8 /EC defines a hierarchy of the interventions to adopt in waste management (Fig. 6 ). Fig. 6 –Waste management hierarchy for Directive 2 0 0 8 /9 8 /EC In particular, such interventions can be grouped according to their purposes: (i) reduction of waste by means of interventions aimed at preventing and/or minimizing waste production; (ii) materials recovery by means of reuse and/or recycling interventions; (iii) energy recovery for the fractions with the highest energy content (mainly plastic and cellulosic fractions); (iv) landfill disposal only for non-recoverable fractions as material or energy or for which recovery is not advantageous. According to Legislative Decree no. 152/2006, in Italy 65% of separate waste collection has to be achieved; moreover, Legislative Decree no. 2 0 5 /2 0 1 0 , which amended Decree 1 5 2 /2 0 0 6 and implemented Directive 2 0 0 8 /9 8 / in Italy EC, established the recovery target of 5 0 % for waste materials such as at least paper, metal, plastic and glass. 5 . Integrated waste management systems In order to respect the hierarchy as i