"Implementation of international environmental law: a supranational framework of effective citizen oversight, administrative and jurisdictional”

 (Conference on environmental issues, to complement the specific subject of the Congress Program)

FERNANDO (dos Reis) CONDESSO, Doctor of Law and Professor of Administrative Law.

Summary: Official documents, as well as frequent knowledge from the experience and news from newspapers, broadcast in this global village we now live, show, on the application of national environmental, intergovernmental and European law, we are face a good, although susceptible localized source of attacks, often in the same regional and global consequences, as, of course, occurs with air pollution (e.g., global warming, pollution radioactive nuclear plants), sea (e.g., waste, oil spills), the water of international rivers (e.g., fish kills, radiation, chemical contamination), the disappearance of species of flora and fauna, food ecotoxicity, and so on. Given this, there is not enough action of the governments and national courts, which often remain inert, if national economic interests and, in any case, whenever the matter involves several states or humanity or part of it. It is necessary that the UN and the Council of Europe as the EU recognize that the environment usually involves something that touches on human rights to life, or a healthy life with quality and the permanence of the Humanity. Thus, there are domains of contamination that should be clearly stated as the cause by putting the human right to life, the true heart of a jus cogens specific theme, that the international community must protect Through International Administrative Authority, incorporated into the framework of the UN, and a Court with global power, with civil sanctions power (according to the most important principle, the polluter-pays principle): -reconstitution of the situation without pollution; and A)- compensation of damages jointly by the State and the polluter, if risk activity if permitted, e.g., gasoline spill, etc., in the sea or in the rivers); and B)- criminal penalties (jail and a monetary penalty, a sufficient deterrent, convertible in jail, to apply for residency status for non-compliant politicians and businessmen),  supranationally determined, as is the case with the Court relating to the Crimes against Humanity (committed by individuals and public entities), if there is negligence or wilful misconduct, in this case typifying the international environmental crime. Besides, the European Convention for Europe UN and content of the European Convention of the Council of Europe on access to information and environmental of residence or nationality, to receive information in the shortest possible time; and receive free information on the internet (email); or in person or by mail, in this case against the payment only of the trustees of reproduction and, being the case, the trustees added carriage, from any UN member state on environmental issues, in order to be able to help proactively monitor and report assaults on international environmental law in general. So it must be recognized at the UN and the European Convention on Human Rights, this important right now. We need to create a independent institution (Administrative Independent Entity, with jurists of merit, from several countries, appointed by the Secretary-General, and advised by another experts in different matters) and a specific World Tribunal. And we must recognize the right to knowledge about facts in environmental matters to all people and all governmental and non governmental organizations, in the world.

"IMPLEMENTATION OF INTERNATIONAL ENVIRONMENTAL LAW: A SUPRANATIONAL FRAMEWORK OF EFFECTIVE CITIZEN OVERSIGHT, ADMINISTRATIVE AND JURISDICTIONAL”

FERNANDO (dos Reis) CONDESSO, Doctor of Law and Professor of Administrative Law.

   Introduction

  The traditional connection between the idea of progress and that of adaptability is strong, but progress implies a huge ability to adapt, to correct the dysfunctions and to build up new functions, new tasks and opportunities as an answer to the inner problems of the area, looking to the future, sometimes with significant steps forwards meaning a new configuration of the world and its societies. The adaptations consist in gaining independence and the changes in the “variables of the environment”^[i]. Man has been walking the path of progress, but sometimes mistaking it with economical growth in the sense of gaining goods to consume and not for the constitution of the “well-living” society mentioned by Keynes. It is because of that that Man attacks nature and exploits it sources, making an adaptation of its dominion and destruction.

  Historically, as reminded by PHILIPE MOREAU DEFARGES, Man has lived according to appropriation logic: “Thus, following the liberal philosophy, the proprietor is the only owner of his dominions, which can be used and misused. The kings, and the States-Nations later, acted like proprietors, consolidating, extending, unifying, fixing their territories”^[ii] and, to tell the truth, it is still nowadays this appropriative culture of nature, earth domineering, the basis of its non-respect and self-destruction, according to the mere conveniences and interests of Man. In specializing literature, in academic or professional talks or, every day, in the newspapers, television, radio or the internet, we perceive that, nowadays, we live in a growing environmental crisis^[iii]-[iv]. And, in any case, in factual terms, prima facie, what we really should worry about is not only the huge amount of damages, localised pollutions, growing risks, environmental disasters (Seveso, Bhopal, Chernobyl, the Aral sea death, oil slicks) but also the threats over natural sources (erosion of the biological diversity, deforestation of the tropical areas) and over our own lives(ozone layer hole, greenhouse effect, etc.)^[v]-[vi].

  Indeed, currently, the degradation of the environmental components takes place, with all the environmental dysfunctions caused by the human being along the history, but which also, above all after the Industrial revolution, are taking on a growing dimension and a meaning, that has turned it into the biggest matter of the present time, it is so outstanding that it cannot be ignored despite of the fact that we live in this XXI century globalized world in continuous search of itself, in the different international contexts and with new ideological  values, even with the general crisis in the financial system, followed by the economical one and also the political^[vii].

  It is important to remember celebrated words from writers in the past, more informed than the current ones. Jean Jaques Rosseau said, in Émile ou De l’éducation, «Jamais la nature ne nous trompe: c’est toujours nous qui nous trompons»^[viii]. VOLTAIRE told, in Stances, «On conduit la nature, on ne la change pas»^[ix].  Or, even FRANCIS BACON, in De dignitate et augmentis scientiarum, «natura non nisi parendo vicitur»^[x]. And also LINNÉ in Philosophieia Botanica, and LEIBNIZ, in Nouveaux Essais, who also said that «natura in operationibus suis non facit saltum»^[xi]. And that is, the precautionary topicality of MONTAIGNE’s sentence, in his Essais «Nature peut tout et fait tout»^[xii]. The thing is that once we have extremely damage the environment far from the limits of the bearable, it is the environment itself which attacks us.  The environment, economy^[xiii] y health^[xiv] are interdependent poles of the human being. The unsustainable economy generates polluted foods and environments, destroys the natural sources^[xv], degrades the quality of life, people’s health^[xvi], the biological diversity^[xvii], and, in a long term, the subsistence of the living beings. That is the reason why, nowadays, the whole world is trying to advance into the known as sustainable development concept^[xviii], which criticise the old-fashioned quantitative aims of the economic growth without questioning the social development. Environmental  barriers must be imposed to calm down the economical development^[xix]. Naturalization and humanization  are requested for the economy, incorporating the new values that shoud determine it^[xx], qualitative ones, in order to involve respect to the nature and the human being^[xxi]-[xxii].

  1. International environmental right application

  1.1. The environmental one is a good which, although it can be damaged by localised aggressions, it generally has regional or worldwide consequences: air pollution (greenhouse effect, radioactive pollution from nuclear plants), sea pollution (toxic waste, oil slick), the pollution of the international rivers (fish deaths, radiation, chemical pollution) the disappearance of species of flora and fauna, food ecotoxicity, and so on.

  1.2. Usually, the national authorities and the politicians either disregard or capitalize (electoral and administratively) on the environment. The vast majority of the politicians has no idea on this matter. The economical ruling classes agree with creating partial commissions so as to launder preset solutions when there are conflicts with big projects. This cannot be an issue only for the governing class. The corrupting osmosis between the political power and the economical one, even in a democracy^[xxiii], is an argument against the national government and the regional one, both usually together in the environmental attacks^[xxiv]. Man is part of the world, we need to change the idea of world making part of man^[xxv]. There are plenty of anthropogenic phenomena which point at a new era of global environmental threats^[xxvi], and Apocalypse^{[xxvii]-[xxviii]}.

  2. General line of argument for the need of an international conception and organisation  of intervention.

  All the big anthropogenic problems have a localised origin, even those of an environmental nature in a wide sense, including not only natural elements but also, sometimes, territory organization, town  planning^[xxix], cultural heritage^[xxx]. but, they have a insurmountable worldwide importance. If not, why are the problematic places and acts being widespread? For example: the city environmental problems has a global dimension today, because the XXI world is a world of cities with growing wastes with a recent toxicity and dangerousness^[xxxi], degradation of the ground^[xxxii], toxic gasification, deterioration and shortage of water, high level of noise pollution, etc.^[xxxiii] And we have the degradation and destruction of the waters, oceans, natural sources, biodiversity^[xxxiv], etc. If not, why the non-resident pollution and toxicity, such as the atmospheric, the aquatic or the resulting of the diffuse pollution of the chemical agriculture^[xxxv], flow permanently and poison all the peoples? They have no limits, no frontiers so they are themselves a globalized problem due to the insurmountable unity of nature and the economical globalization^[xxxvi]. That is the reason why it is difficult and useless to distinguish between small pollution and big pollution, resident pollution or travelling, volatile pollution. Even, because the local contamination usually ends up being solved once it has became a global pollution^[xxxvii].

  In the end, all pollutions have a global dimension or at least they are sensitive to global consequences. Thus, they reveal worldwide problems, that is, problems which affects everybody. Is this not a question that should worry everybody in every simple place in the world? And also, of course, to the “power“, public or not (although the power is not the only objective of the individuals, parties or State^[xxxviii], the truth is that «poder está em todo o lado», said, in  Curso de Relaciones Internacionales, JOSÉ ADELINO MALTEZ, quotation from MICHEL FOUCAULT, in La Volonté de Savoir, de 1976^[xxxix]), who are also interested in this matter, the international groups of which this author also write in reference to the globalisation problem^[xl], international or private organisations, such as NGOs^[xli], social communication, and even the most illustrious individuals. By the way, dealing with interconnectional  issues as important as main topic itself, as authority, social communication, democracy, environment^[xlii], it is important to remark the obvious representative crises in the current democracies, as “there are very few people who feel represented by the political classes“. As Maltez state, “61 countries with the 36% of the world population still don’t have free press”. “there is still something missing for the estate to stop being the Luis XIV c’est moi and turn into the c’est nous where the power is in the people, to the people and for the people”^{[xliii]_[xliv]}.

  Is it not the whole world population in danger because of the environmental problem? Each man, in his territory, does not act for his own profit only, but for the profit of the all man of today and tomorrow. Yet LECOMTE DU NOÜY, made this questions really disconcerting about the problems of the future of man: “who has never ask himself this questions: where is the humanity going? What is its future? Does it have a final aim? Is it possible that all intelligent life will end someday once and for all? Will all dedications, all the suffering, all the sacrifices, heroisms, all virtues,  all the beauty have no been but going to be straws in fire, useless chance fire, of which nothing will be left nor even the ashes?”^[xlv]. Is it not the environment the real thing that compromises all human beings at first sight, so as to be recognised as having the widest natural and universal rights to kwon it and protect it?

  Seen this, the actions of the national administrations and courts is not enough, as they usually stay opaque and inert, if there are economical interests in the nation, and, in any case, every time the problem involves different countries or maybe the humanity or part of it. The administrative procedures, discouraging and preventive, that assume exempt public authorities and open knowledge to the citizens, being public initiative or private sector, are fundamental for the defence of the environment, gaining an essential “guaranteed” dimension, as the attacks to the environment, in its nature (an extinct species will never resuscitate; it is the same with the poisoning of waters, the excess of carcinogenic substances in the agriculture, and, in general, the pollution of the food has an irreparable damage, etc.) And, as we have reached a level of dysfunctional dimensions in which, or we prevent things to happen, or the patches, sanctions and even the compensation for environmental damages, will not work^[xlvi]. 

  3. For an effective supranational frame of its control: town, administrative and jurisdictional.

  It is important that the UN and the European Council, as the EU acknowledge that the environment is an important issue in relation to the human living rights, or a healthy life, with quality, the reason why there are so many normative missions, administrative and jurisdictional ones to carry out. Thus, there are dominions of pollution which can be clearly specified as to infringe the human rights, the real centre of the ius cogens, specifically. The International community should protect, making use of a International Administrative Authority integrated in the frame of the UN, and also an international Court with global compulsory competences, with power of civil sanction (attending to the principle of pollutant-payer: reconstruction of the situation without pollution, and compensations to the Nations and individual, in the case of permitted risk activities, e.g. spillage of naphtha, etc. in the sea or a river) or criminal sanctions (prison or convertible in prison fine).

  The sanctions and sentences the State should apply to the politicians and businessmen who failed to comply with legal terms, must be a punishment decided by a supranational court, as it happens with crimes against humanity (on the part of individuals or civil services) if there is negligence or fraud, in that case being the international environmental crime categorized. Besides, the European agreement with the UN for Europe itself, and the contents of the European agreement with Council of Europe about the access to the information and the jurisdiction in the environmental matter must be improved in a worldwide treatment, giving to access to anyone, no matter where they are from or their nationality, to receive on time information, as soon as possible and the costs of the material (without commercial interests), of any of the UN members, about environmental problems in order to be able to help with the preventive control and to condemn the aggressions to the international environmental rights, in general. Considering this phenomenon, the Council of Europe, and then the EU and its member states will start debating and legislating about the right of information on these matters. But, although this is an important fact, that is not all. It will have to deepen in all levels all the implications of the environmental problem. And general international instruments are needed without which the common good will be never coherently defended enough. In fact, it is important to inform, to have the access to the information. Thus, as El Talmud proclaimed: “There is no poverty worse than that of knowledge”^[xlvii]. And, as GOETHE said: “nothing more scary than the ruling class ignorance“. ”those who know nothing, doubt nothing”^[xlviii]. It will have to educate to make aware^[xlix], but if the citizens are not educated in this matter, so as the ruling class and the politicians, from the same people. In any case, due to the ignorance, the lack of environmental education and the confusion between the political and economical interests^[l], one cannot trust , on that matter, strictly on the ruling class, most of them arriving from the business field, and stepped in the simple economical logic (as HORACE said: “virtue after money”^[li]). As we referred in the handbook Direito do Ambiente, «O ordenamento jurídico impõe ao homem aquilo que a ordem pré-normativa lhe exige. (...). Todas as ciências podem ser reserva dos seus sábios e operadores. A ecologia é de outra ordem. Ela é ciência que, ou passa a ser do domínio de todo o homem, ou, a prazo, não o será de homem nenhum. Se têm de ser todos os homens a dar utilidade aos seus conhecimentos, estes têm de ser permanentemente democratizados, amplamente difundidos. Os ecólogos, os ambientalistas e os homens comuns estão convocados para o diálogo diário. Todos têm encontro marcado, a todas as horas e para todos os seus actos. Podendo salvar o mundo, se se isolarem, não evitarão que ocorra a sua ‘inocente’ destruição. De qualquer modo, à falta de banalização das ciências ambientais, a norma serve também de veículo de informação. Importa saber que a norma ambiental não é um exercício de afirmação livre de poder, pois normalmente até funciona contra as elites estabelecidas, os mais poderosos. Por isso, normalmente, ela vem atrasada e assume camuflados compromissos de minimis. Lá onde se proíbe ou condiciona, é porque há –normalmente, já havia há muito tempo- problemas ecológicos, que a impõem. (...). No campo do ambiente, o direito deveria ser inútil. Inútil, porque ou é preventivo e não devia ser necessário, a haver a devida informação mobilizadora, desde o berço; ou é correctivo e, em geral, não evita o mal. E aqui, já não pode haver mais mal infligido à natureza. O que está em jogo é de tal ordem que a sua utilidade, numa sociedade devidamente informada, teria de ficar reduzida aos ‘loucos’ e ‘suicidas’» (CONDESSO, F. –«Nota de Apresentação». In Direito do Ambiente. Coimbra: Almedina, 2001, p.5-7). Today (once the inanimatus nuncius FRANCIS BACON mentioned in New Atlantis, 1627, has been fixed, not a utopia anymore^[lii]), we life in the “society of information” or “society of knowledge“, “due to the advance, to the qualitative jump led by the new technology of information and communication”, in which both factors, knowledge and information, which “have been crucial in the productivity, the economy and the relationships of all kind(…), at least for a long time now”, are gaining in our society “one of their most influent moment”^[liii]. Regarding the flow of information, significant of course in the area of freedom and, in general,  in the defence of all interests, individual, collective and diffuse, although making reference specifically to the social media, among plenty of authors, such as MCLUHAN “the extension of Man”^[liv].

  And what about the lack of information flow? That is also an inherent human  right, as being necessary for and from the power who governs and manages, the citizens, in a society in which the administration has a hyperbolic and omnipresent intercession, which adjusts, works and knows, more and more, every single aspect of our lives, and it is because of that, at least in environmental interests, holder of massive information, most of it about with strategic value for mankind and the planet, and to fight for a sustainable society and welfare.

  Conclusion

  It must be admitted, in the international area of the UN and also in the European Treatment for Human Rights, this important current human right. It has to create an independent international administrative institution ( AAI, with expert jurist from different countries, named by the secretary-general, and advised by different experts). It has to create a specific court: International Environmental Tribunal. It has to acknowledge the right to the information about everyday facts with environmental involvements to every human being in the world.