Professor Evangelos Raftopoulos,
Editor and Founding Director of MEPIELAN Centre,
Panteion University of Athens, Greece
Visiting Fellow, Downing College, University of Cambridge, United Kingdom
Dancing with the Transposition of the Public Trust Approach in the Realm of Conventional Environmental Governance
I have a lot of sympathy with the view that expert knowledge is particularly difficult to transfer. As Rolf Dobelli perceptively remarks “insights do not pass well from one field to another” and he calls this effect “domain dependence”. This seems to be particularly true with regard to legal approaches and insights in the multidisciplinary world of international environmental governance. In this context, technical and economic knowledge have, predictably and inescapably, the upper hand in the pursuance of a holistic, interdisciplinary management of the highly complex and continually evolving issues related to the protection of the environment and its sustainability. Here, legal approaches and insights, although fundamental and potentially crucial for better and more participatory governance, are rarely considered. And when tackled, they are handled with the utmost care and from a very narrow angle. This has something to do with the fact that, during the negotiations taking place at the various institutional levels of international agreements establishing environmental regimes, the accredited delegations rarely include scholarly legal experts or specialized international lawyers. But there is another aspect to it, much more subtle and much more difficult to comprehend. It is, in fact, the way we generally conceive and interpret the relationship between international law and governance. Beyond the “domain-dependence” effect of Dobelli, it seems that there is a more covered, a more resistant “domain-hardening” effect featuring international legal thinking.
Should we continue to stick to a positivist, static “lawyer’s view” of international law, or should we embrace a “layman’s view” of international law? More specifically, should we continue to predominantly identify the development of international law with the core concepts and enforcement of a “generalized” private law taken out of the contexts that make it operable (a vertical system of governance, values and traditions that infuse private laws and the vertical system of governance)? And simpliciter
: Should we understand international law within the “traditional” contractual paradigm? Or should we embark on a more public-oriented approach to international law, a process approach, related to the pursuit of more effective and more legitimate governance – the continuously negotiable consensus
management - of international common interest? Should we then look to an international agreement as an end-state
or rather as a structured activity
And into the realm of the polycentric
international environmental law and governance these questions take specific directions. How convincing would be the positivist lawyer’s view explaining the legal nature of the standardized open-ended duty to report of the Contracting Parties to the Barcelona Convention system – and actually enshrined in the new generation of international environmental agreements – namely, that the Contracting Parties have the duty to report on “the legal, administrative and other measures
taken by them for the implementation of the Convention, its Protocols and of the recommendations
adopted by their meetings”? Is it not true that positivist lawyer’s view leaves, rather predictably, entirely blurred the extent of assessment
of compliance of the Contracting Parties which is directly linked to such a conventional-declarative system of reporting and for which the Compliance Committee and the Meeting of the Contracting Parties (MOPs) are expected to consider and decide within their respective field of competence? And, how effective is their argument for a positivistic understanding of the nature of legal obligation enshrined in Article 4 (2) of the Barcelona Convention which provides that “the Contracting Parties pledge themselves to take appropriate measures to implement the Mediterranean Action Plan
”? Or perhaps even more: how can they legally explain and achieve the implementation of the rather obscure duty of the Contracting Parties to protect the marine environment and the natural resources of the Mediterranean “as an integral part of the development process, meeting the needs of present and future generations in an equitable manner
” – in other words, the duty of sustainability generically prescribed in all major policy and legal instruments of international environmental protection?
MEPIELAN Centre, as an accredited UNEP/MAP Partner since 2013, participates in the current multi-level negotiations taking place within the framework of the Mediterranean Action Plan (MAP)/Barcelona Convention System for the preparation of the 19th Meeting of the Contracting Parties (19th MOP). In doing so, MEPIELAN Centre is in constant pursuit of an “added value role” in order to contribute to a more effective governance and sustainability of the Mediterranean region. A significant step towards this direction is MEPIELAN’s innovative proposal, tabled at the multi-level negotiation bodies preparing the 19th MOP, to promote the application of the public trust approach to the Barcelona Convention system with a view to covering its implementation gaps at both national and international levels. The public trust approach (PTA), being clearly identified within the conventional regime of the Barcelona Convention system – as is in many contemporary conventional environmental regimes – and in particular in the core Article 4 of the Convention, is based on the fundamental conception that all resources, managed by the Contracting Parties in this framework, are held in trust and must be managed on behalf of their citizens and for the benefit of their present and future generations. The Contracting Parties are legally obliged to protect and sustainably govern the public trust regime which they themselves have conventionally constituted in the Mediterranean region (the Barcelona Convention system/MAP) for the beneficiaries (“present and future generations”) and they cannot repudiate this responsibility.
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