of law

Guy Canivet
suggests practical steps that need to be taken to make environmental and sustainable development law effective

In France, as elsewhere, many decisions have already been taken to administer environmental law by higher courts, administrative or judicial bodies. But these are just the beginning of a considerable judicial precedent that will shape our system in the future.

French judges are convinced that the balance between development (taking account of the planet’s ecological functioning) and the maximum use of resources, combating inequality and eradicating poverty, are all to be seen as an extension of human rights. These are the most important activities, the most innovative activities that will be noticed in years to come.

Universal legal values
Sustainable development brings together all the debates on law – international law, public law, international private law, comparative law and the philosophy of law – to contribute to the emergence of universal legal values: a sort of common law for sustainable development. These legal instruments should make mutual recognition of decisions possible in different jurisdictions – within the limits of authorities and separation of powers – ensuring their application in countries other than those where the sentences were actually handed down. It should also make it possible to bring these decisions into line, to ensure the convergence of national and international law on sustainable development. Judges whose states have the means must organize procedures to allow the implementation of sustainable development law, in terms of environmental governance, taking account of the different jurisdictions in their respective areas.

Each state should be given a judicial authority, independent of both political authorities and of all private interests, sufficiently strong to hand down its decisions to both. States must also organize competent, informed bodies to produce judges who are well aware of environmental law. There is a need for individual and collective action on constitutional, public, private and criminal law, making it possible for ordinary people to ensure that justice is administered effectively. In particular, states must create procedures (or allow them to be created) to make it possible to control and verify the legality of decisions taken on environmental matters, and enable ordinary people to oblige the state to take positive action.

The principles of sustainable development go much further than private interests, so there must also be national recognition of the general nature of what can be protected under sustainable development and environmental law. Among the public agencies that could be set up would be a prosecutor’s office to ensure that the law is applied. Lawyers and counsel must also be properly trained in environmental and sustainable development law, while ordinary people must be well informed of their rights, and have access to the necessary legal aid, in order that they can undertake actions.

Issues of sustainable development require complex technical, scientific and social analyses. But there is usually an imbalance of forces in the technical machinery for expertise: pressure is exerted by the most powerful parties. So it is important that independent, neutral and objective expert bodies are established.

The judiciary’s debate and discussion, as currently organized, is not sufficiently prepared to take into account all the interests of local communities and citizens. Decisions lack credibility if not made transparently and democratically. There is also a huge gap between environmental protection law and the reality of the situation on the ground. Environmental trials take a long time to complete, and they are costly.

International cooperation
We often have to deal with cases following ecological catastrophes. We must try to put more stress on preventative measures, on controlling risks that might be dangerous for the environment – even using our power to ban risky activities which may cause irreparable damage. We must also boost international cooperation in the environmental field, particularly in research and investigation carried out between different states and in the transfer of evidence and proof

Justice Guy Canivet is Premier Président de la Cour de Cassation, France. .

PHOTOGRAPH: Edwin C. Tuyay/UNEP/Topham

This issue:
Contents | Editorial K. Toepfer | Strengthening the rule of law | Partners in law | Justice can be shortsighted | Force of law | A matter of judgement | A law of energy | People | Rule of man, or rule of law? | At a glance: The rule of law | Sebastião Salgado | Sustainable development comes from Saturn! | One planet, different worlds | Nature’s wisdom | Kickback fightback | Conflict and cooperation | Holistic landmark | Empowering the poor | Legal climate | Small is effective | Building the framework

Complementary issues:
Disasters 2001
World Summit on Sustainable Development 2002