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by Professor Evangelos Raftopoulos,
Editor and 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


Theme I

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”[1]. 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?
 
Theme II

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.

PTA was developed and flourished in domestic legal systems.  Rooted in the common law of trust, it has been developed as a doctrine of Anglo-American Law, expanded in Asia, Africa and South America and progressively identified in the environmental legislation of many European Continental Countries. The proposed transposition and application of PTA to the Barcelona Convention system/MAP would provide a unique legal platform for building the fiduciary relationship among the Contracting Parties, their citizens, both present and future generations, and the resources covered by the Barcelona Convention system and the services they provide. The Contracting Parties would have the duty to act as conventional guardians of the marine environment and natural resources of the Mediterranean, protecting the interests of the flow of generations of their people.  Embracing the interrelated concepts of intergenerational equity and sustainable development, the PTA provides a legal substance for the commitment – and the determination - of the Contracting Parties to implement the ecosystem-based approach to the Barcelona Convention system/MAP.  In this context, it should not go unnoticed its unique adaptability: its ability to contain the developing scientific knowledge and practice related to the better understanding and protection of all components of ecosystems – the need for a holistic assessment of the interacting natural resources with the human environment.

All in all, the transposition of the PTA to the Barcelona Convention system/MAP is to generate a catalytic integrating effect, embracing both the domestic and the international levels. It would provide the platform for the identification of certain fundamental fiduciary duties of the Contracting Parties which would refer: to a more effective, beneficiary-based approach to public participation; to a more efficient and effective institutional coordination at the domestic level; to a highly informed and context-sensitive application of due diligence; or, to a more relational understanding of the structuring and function of compliance by effectively and legitimately involving the public in the compliance mechanism. It would also refer to the need for a more legislative-based implementation of the Barcelona Convention system promoting a domestic environmental order better reconciled with the recent generalized tendency of the Contracting Parties to increasingly resort to declarative, or soft law, discretionary implementing treatments (especially through numerous Action Plans), thus expanding the “working space” of their common commitment to problem-solving in terms of “relative” normativity.

Theme III

Of course, into the negotiating meeting rooms of the specific Working Groups and Focal Points of the Contracting Parties, where the Documents and the Decisions to be adopted by the 19th MOP are discussed, the predominant understanding of “the ecosystem approach based measures gap analysis” and the consensus in this regard is predominantly technical inextricably linked with political overtones. The administration representing the Contracting Parties (including the EU) and the participating NGOs and other stakeholders represented by technical persons, scientific experts and activists, focus on the (undoubtedly important) technical/scientific and policy dimensions of the identified gaps and measures in the implementation of the Barcelona Convention system/MAP. As a result, they identify and recommend, as possible measures, the development of: certain priority technical actions; more action plans/cooperative activities/strategies; stricter guidelines; more adequate implementation of the existing action plans and updating national plans; more adequate country-specific capacity building and training; or more strengthening of the science-policy interface.

In this context, the law dimension in the implementation of the Barcelona Convention system becomes politically “technicalized”. It is confined to the familiar political “wish list” of strengthening ratification efforts, public participation, and the reporting procedure and compliance. Perhaps, a new window should be opened in the negotiating process, providing the opportunity of further considering and exploring legal concepts and tools that may render public participation, reporting procedure and compliance more effectively and more legitimately addressing their “visible” problems and, thus, more effectively serving international common interest. The proposed exploration of public trust approach may provide this innovative fertilizing perspective and generate the required legal insights into the sustainable governance of the Barcelona Convention system and beyond, responding to other complex environmental challenges.

ENDNOTES
  1. Rolf Dobelli, The Art of Thinking Clearly (transl. by N. Griffin), Harper-International Edition, 227.
  2. MAP: Decision 20/4 “Implementing MAP Ecosystem Approach Roadmap: Mediterranean Ecological and Operational Objectives, Indicators and Timetable for Implementing the Ecosystem Approach Roadmap,” Report of the 17th Ordinary Meeting of the Contracting Parties, Report of the 17th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols, Paris (France), 8–10 February 2012, UNEP(DEPI)/MED IG.20/8 Annex II, pp. 39–42. Decision IG. 21/13 “On the Ecosystems Approach Including Adopting Definitions of Good Environmental Status (GES) and Targets,” Report of the 18th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols, Istanbul (Turkey), 3–6 December 2013, UNEP(DEPI)/MED IG.21/9, Annex II – Thematic Decisions, pp. 199–204.




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