The Non-Regression Principle and Environmental Law
The main objective of environmental law is to contribute to the minimization of pollution and the preservation of biodiversity without territorial restrictions, given that the environment does not have any borders.
While environmental law is recognized by a great number of constitutions as a new human right, it is paradoxically threatened within this same subject, something that could lead to moving backward, constituting a true regression that is damaging towards the future of mankind.
The threats that risk this backwards move within environmental law have different origins:
Legal: given the sovereign power of the constituencies and their parliaments, every legal action can be modified or revoked, theoretically, there are no eternal legal rules.
Political: the demagogical will to simplify law encourages deregulation, better said, deconstructing legislation related to the environment, taking into account the growing number of environmental legal norms at both the international and national level.
Economic: the global economic crises favored the argument that claims for less restrictions within the environmental field, once again claiming that they would put a stop to development and the fight against poverty.
Psychological: the range of norms related to the environment are in fact a complex collection hardly accessible to non-specialists, which serves to benefit the argument favoring a minimization of the restrictions found within environmental law.
There are many different types of regression:
- Up until now, there have been no examples of regression in the field of international environmental law, nor in community environmental law.
- On the contrary, we have observed a more insidious regression within national environmental law.
- Modifications on the proceedings reduce public rights with the pretext of relieving proceedings.
- The revocation and modification of environmental legal rules reduce protections or render them inoperable
In order to face these threats of regression, environmental lawyers must react firmly, basing themselves on irrefutable legal arguments. The group of legal experts of the IUCN Commission on Environmental Law has as its common objective to place their experiences and pertinent legal arguments at a universal scale, in order to halt the threat of going backwards with regards to environmental law.
It is thus convenient to find support from a legal argument that creates a new principle of environmental law, adhering to the classical principles: prevention, precautionary, polluter pays and public participation.
The basics for these legal arguments are:
1. With regards to the theory and the philosophy behind the law: Can we derogate to classic theory and the foundation law mutability found within democratic systems? Can we justify the existence of irreversible norms? Does the purpose of environmental law (the constant improvement of environmental quality) justify the prohibition of regressive measures?
2. With regards to Human Rights theory: international law aims for constant progress of protected rights through the 1966 international agreements; this is interpreted as a halting factor for regressions. Since environmental law has become a human right, can it benefit from this theory of constant progress notably applied to social rights? Can multilateral environmental agreements and jurisprudence from international courts on human rights contribute to sanction the principle of non-regression with regards to the environment?
3. With regards to international environmental law: all of the multilateral international agreements, whether global or regional, aim for the “improvement of the environment”. How can we ensure that interpretations of these agreements by part of States, COPs, doctrines, and control mechanisms arising from these agreements, not lead to a claim clearly a contrario to the international obligation of non-regression?
4. With regards to European Union law: the Lisbon Agreement (art. 3) aims for a high level of protection and an improvement of environmental quality; how can we make sure that this principle be translated by the doctrine, the States and Courts of Justice of the European Union, as an irrevocable principle using the theory behind community acquisitions as support.
5. With regards to constitutional law: certain countries (Brazil, Portugal, Germany) have “eternal” (clausula petrea) clauses within their constitutions. How can these eternal clauses be interpreted to include the human right to a healthy environment?
6. In constitutional law, the legislator is sometimes not allowed to reduce or limit fundamental rights (in Argentina or Spain, for example): How can this limitation be applied to environmental law, turning it into a fundamental right by invoking it before national courts and by raising awareness of the constitutionalist doctrine and NGOs? How can we inform and explain constitutional judges within States of the existence of a principle of non-regression, specifically with regards to environmental law?
7. With regards to national environmental law: while national texts on the environment all claim for the urgency of reducing threats against the environment, how can they be interpreted a contrario as something that prohibits all regressive measures? How can we raise awareness among political environmental actors and NGOs on how environmental law is irreversible, which does not mean that it is untouchable, since it must always be possible to modify it the sense that modifications constitute an improvement, not a regression?
8. Last, with regards to the jurisprudence from different national, regional and international courts, how can we raise awareness and explain to judges the existence of the principle of non-regression and thus diffuse the first examples of jurisprudence that have used this principle (in Belgium, for example)?
9. And in general, how can we determine precisely the thresholds and criteria of regression or non-regression of an environmental measure, both at the proceedings level and at the legal substance level?
Michel Prieur Co-Chair of the Group of Legal Experts on the Non-Regression of Environmental Law Commission on Environmental Law UICN October
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