Definition

The right of the environment has as an aim the comprehensive study of the legal rules to environmental protection in all its forms terrestrial, natural and cultural, even not-terrestrial (space right). Right technique and complex, its fields progressively tighten with densifier scientific and technical projections human.

It is a rather recent transverse right which includes/understands many subbranches. Developed with various scales and legal systems, fruit of a specific history, the right of the environment covers the hierarchy of the standards in particular in International law, Community legislation and local national right even .

The interaction of its three beams is growing progressively of the rise to power of the Globalisation economic, political and social and of the environmental stakes which accompany them of which the Climate change, the Sustainable development where the Nanotechnologies constitute the last illustrations.

In addition to its normative aspect, imposing of the obligations of Law and order - compared with hardware law or " right dur" , the right of the environment can also take the character of soft Droit, without imposing legal obligations but just of standards of behavior recommended to the actors of the right.

Various subbranches

The right of the environment mixes various approaches and relates to various subbranches which make the daily newspaper of the experts:

  • Those related to the elements compose the Environnement: right of the Air, - right of the Water, right of the grounds, right of the Biodiversity

  • Those related to human activities: right of the Hunting, the fishings, the energy,
  • Those related to harmful or polluting activities: right of the Noise, right of the classified installations (formerly establishments), right of the Cleansing, right of the industrial or natural main risks.
  • Those related to a particular object: right of the Protection of nature, right of the chemicals, right of the Waste, right of the sites, the Historic buildings.
  • Those related to an economic sector to which one affixes his own environmental legal problems: Agriculture and environment, Industry and environment, services and environment. The variation can go ad infinitum by under-sector: pisciculture, nuclear power, tourism, etc

One opposes often artificially whereas they are complementary the right of protection of nature and the right of the fight against pollution and harmful effects.

Each time, for each one of its subbranches, the right of the environment is declined according to the legal order which he questions: national/international room/including the Community legislation for Europe with for example the Community legislation of the environment.

This interaction is also done with respect to other legal branches the following the example of of the criminal law, the commercial law, right of the businesses, the revenue duty and one will then evoke the criminal law of the environment for example, even by crossing the two above mentioned subcategories as example of criminal law Community of the environment.

One will include/understand ansi the extreme technicality of the right of the environment to crossed of good of other legal disciplines.

General chronology of the international law of the environment

The International law of the environment includes/understands more than 300 conventions or treated multilateral without counting the bilateral agreements. It is the fruit of a long story which is recalled by some benchmarks.

  • December 2nd, 1946: International convention for the regulation of hunting for the whale and the large Cetacea - creation of the Commission international whale-boat

  • 1948: Creation of the International union for the nature conservation (UICN) gathers 68 States, 103 public agencies and of the ONG S; objectives: to support: the biodiversity, the rational and equitable use of the natural resources, sustainable development by activities of lobbying, and by making studies, reports/ratios,
  • 1951: International convention for the protection of the plants
  • 1961: Union for the protection of vegetable obtainings, protects the Certificat from vegetable obtaining (COV), discussed, by the African countries in particular, and poses some contradictions with the Convention on biological diversity of 1992.
  • 1961: Creation of the World Wildlife Fund (WWF), become in 1986 Funds World for Nature.
  • 2 February 3rd, 1970: Convention of Ramsar (Ramsar, Iran) relating to the wetlands of international importance particularly like habitats of the wildfowl : within the framework of the program MAB (Man And Biosphere) of UNESCO ( United Nations for Education, Science and Culture Organization ); coming into effect in 1975; 61 States, 800 sites is 500.000 km ²;
  • December 1970: the United States creation of the Environmental Protection Agency
  • 1971:
    • Program Man and Biosphere: launching of program MAB by UNESCO, giving place to the creation of Reserves of biosphere (1976): world coordination of protected areas (parks, reserves…).
    • France: first Department of the Environment

The first top of the Earth

  • June 16th, 1972: World conference on the environment with Stockholm which leads to the Declaration of Stockholm: “the man has the solemn duty to protect and improve the environment for the generations present and future”;

  • November 23rd, 1972: Convention on the World heritage (sometimes called Convention of Paris) under the aegis of UNESCO: it aims to the protection of the cultural heritage and naturalness with universal value; the sites are registered on the “List of the world heritage”; the State signatory then begins not to destroy them. It is thus simply about a label.
  • 1972: Convention on the prevention of the marine pollution resulting from the immersion of waste, commonly called Convention of London
  • March 3rd, 1973: Convention on the international business of the species of fauna and flora savages threatened of extinction or Convention of Washington, sometimes called QUOTE ( Convention one International Trade off Endangered Species ). Regulate the trade of plants and live animals or died by 3 appendices: I) species not being able to be the subject of commercial movements; II) species being able to be the subject of commercial movements with license of export QUOTE and controlled population; III): species being able to be the subject of commercial movements with only one license of export. The EU imposes more strict provisions.
  • 1976: the Council of Europe European Network of biogenetic reserves -
  • April 2nd, 1979: European Union: Directive the EEC 79/409 known as Directive birds: indicate the protection zones special for the rare or threatened birds.
  • June 23rd, 1979: Convention of Bonn on the migrating species gathered in an annexed list. The states signatories must: to promote research on the migrating species; to grant an immediate protection to the species of appendix I (ex baleinoptères); to conclude from the international agreements for the species of the appendix II (ex: gazelle).
  • September 19th, 1979: The Council of Europe Relative convention with the conservation of the wild life and the natural environment of Europe, also called convention of Bern, it concerns the EU and other states European as well as states non-member but concerned with certain migrating species such Senegal, Burkina-Faso. objective: conservation of the wild life and the natural environment of Europe. means: 500 protected plant species and 580 animal species: flora: prohibition of cut, gathering and déracinage intentional + protection of the habitats; fauna: prohibition of capture, destruction of the habitat, disturbance, marketing, except the only protected species. This convention comprises 4 appendices listing the degree of protection of the species (fauna or flora).

  • March 22nd, 1985: Convention of Vienna relating to the protection of the Layer of ozone, ratified in 1986, establishing a framework preparing the protocol of Montreal

  • 1986: moratorium on hunting for the whale
  • September 1987: Protocol of Montreal set up to eliminate the substances which impoverish the layer of ozone, states committing itself prohibiting CFC with a deadline
  • 1988: creation by the the United Nations of the intergovernmental Group of expert on the evolution of the climate
  • March 22nd, 1989: Convention of Basle on the control of the transborder movements of dangerous waste and their elimination, coming into effect in 1992. This convention aims to reduce the circulation of the Déchets dangerous between the countries, in particular towards the developing countries.

Summit of the ground in Rio

  • May 22nd, 1992: Conference of the United Nations on the environment and the development (top of the Earth) with Rio de Janeiro (Brazil) organized by UNO: the greatest intergovernmental conference ever organized which devoted general principles which from now on left the language running like the Sustainable development and which led in particular to:

  • June 17th, 1994: Convention of the United Nations on the fight against the turning into a desert, coming into effect in 1996
  • September 22nd, 1995: Round of applause Amendment of the Convention of Basle which prohibits the export of dangerous waste of the OECD countries towards the developing countries. not coming into effect. this amendment inspired the creation of regional conventions, the such Convention of Bamako of 1996.
  • 1996: Convention on the responsibility and the compensation for the damage related to the sea transport for harmful and potentially dangerous substances, convention known as “Convention SNPD” not coming into effect
  • June 25th, 1998: Convention of Aarhus or Convention on the access to information, the participation of the public in the decision-making process and the access to justice as regards environment.
  • September 10th, 1998: Convention of Rotterdam on the procedure of preliminary assent with full knowledge of the facts applicable to certain chemicals and dangerous pesticides which are the subject of an international business (known as Convention PEAK, Prior Informed Consent )
  • April 12th, 1999: International convention for the protection of the the Rhine, widens the action of depollution to the durable management of water, with the preventive actions of raw and floods…
  • 2000 Protocol of Carthagène (Spain) on the prevention of the biotechnological risks
  • May 22nd, 2001 Convention of Stockholm on the persistent Polluants organics agreement aiming at prohibiting certain polluting products
  • February 2005: Coming into effect of the Protocol of Kyōto (had to be met constraining conditions)

Right of the environment by zones

In the European Union

See also: Political European of sustainable development

The environmental regulation represents, directly and indirectly, a big part of the European regulation, which itself generally derives from International treaties. This legislation conditions 80% of the national regulation of the 27 Member States of the Union of which France.

It is since the Traité of Amsterdam (1997) that this tendency is very marked. It was still accentuated after the Sommet of the ground of Johannesburg (2002), when large companies were invited to this type of demonstrations, under the pressure of the Governmental organizations.

Today, the large companies generally take part in the preparation of the EU law. On the environment in particular, the Lobbys (ONG…) and the Lobbies (industrial) take a big part in this preliminary work, which is done after proposal of the European commission, in advisory committees. This work makes it possible to work out green books and white papers.

Examples of White papers:

Example of green book:

  • Responsibility sociétale for the companies.

These general orientations then make it possible to work out directives, which must be transposed in the national rights of the Member States of the European Union, and of the payments, which are applied directly. Under the terms of the Hierarchy of the standards, the Community legislation carries it in theory on the national rights of the États-membres.

Examples:

etc

In addition, the Public administrations are held on request to provide to environmental information citizens (directive 2003/4/CE). This provision applies in a variable way according to the national rights.

In practice, the environmental constraints have a very strong impact on the Innovation Technologique. An office in Seville is charged to place at the disposal of the companies the Meilleures technologies available for the resolution of an environmental problem. The Payment REACH, for example, led to apply this type of process in the case of the Chemical substances.

As much the Large companies is prepared with this transformation, as much the Small and medium-size companies are often let surprise, owing to the fact that they live from day to day and generally do not have a structure of environmental Veille. In addition, their operating process is done primarily by direct Human contact.

This is why, in France, the network of the Chambers of commerce and industry (ACFCI) set up a gate of environmental Veille (Enviroveille) bound for SME, in order to inform them of the evolution of the environmental constraints.

In France

See also: Chronology of the right of the environment in France

The right of the environment is recent a enough transverse right for legal sciences

Transverse, he traverses more than one about fifteen preexistent codes and cumulates the aspects of public Droit and Private law. Modern, technical and complex right it is the object, in France, of a particular code called Code of the environment, come into effect by the Ordinance of September 18th, 2000.

Its recognition is undoubtedly due to the creation of the Department of the Environment in 1971.

But of the initiatives such as the law on the National parks of 1960 then of the law on the water of 1964 constituted of the outstanding projections of this slow recognition for the Environnement in France, later compared to other Western countries.

Historically, the first acts of public health of the cities of the Moyen-âge even of the Gallo-Roman cities were perhaps the first signs of this right which is not limited to the concept of administrative Police concerning the Administrative law. Let us note like possible first text in the right of the French environment, an imperial decree of 1810 which subjected to prior approval operation workshops likely to cause embarrassments for the vicinity (3 possible classes of authorization). This decree applied until the law of December 19th, 1917 which replaced the 3rd class by the concept of declaration. The reform of the Law Barnier of 1995 gave again with the right of the environment its first general principles registered to the code (Article L 110-1, ex L. 200-1 of the Rural Code). The right of the environment knew finally a recent constitutional dedication with the Charte of the environment, wanted by Jacques Chirac and promulgated on March 1st 2005 by the Congress. That Ci creates a third generation of human rights (after the rights subjective of the Declaration of the Human rights and the citizen of 1789 and the social rights and economic of the Preamble of the Constitution of 1946), whose legal consequences are still dubious. Jurisprudence to come will show if this right to the environment proves to be a sufficiently precise right to be devoted by the courts. A first step was crossed in this direction by the ordinance of returned summary procedure-freedom on April 29th, 2005 by the Administrative court of Champagne Trawl-nets, said Teknival jurisprudence, which for the first time recognizes with the " right to an healthy environment and balanced " the quality of fundamental freedom. The production of French legal standards in the field of the environment also depends on the standards which are higher to him, namely:

  • the International law of the environment (more than 300 multilateral conventions or treaties without counting the bilateral agreements); it can also take the character of soft Droit, without imposing legal obligations.

  • and especially, taking into account European integration, the Community legislation of the environment whose transposition is with the source of more than 85% of the French right of the environment, exercise of transposition which is not always well ensured besides like it recalled the Senate still recently

In the United States

See also: Political environmental of the United States of America

Culture of the legal standard and the environment in the United States

The culture of the standard with the legal direction of the term is much developed in the United States than in France.

The White House and the Congress created in 1970 an federal agency of environmental protection (Environmental Protection Agency).

Method

The method adopted in the United States on the environment is very different from that of continental Europeans:

  • the environment is regarded as a soft Droit (), i.e. the standards do not have a true obligatory force there. One thus lets the citizens reflect and/or act by themselves. In practice, that means that the right lays down objectives to be respected and gives few standards to the means to reach that point. Thus, the liberty of action, essential in the United States, is preserved provided that the objective is respected. If a party is not agreement on the method which uses another on the respect of a given objective it can continue it in front of the courts. The decision makes then Jurisprudence, according to the Anglo-Saxon principle of the preceding . This explains the heat of the non-governmental organizations (ONG) or of the regroupings of citizens to continue companies with an aim of creating a precedent and, consequently occasion, of making them pay very large sums of damages in order to discourage the contraveners.
  • As on other subjects, networks of influence and lobbies is constituted, supported by from ONG, and extends their ramifications as far as Europe.
  • Once the environmental subject cleared of undergrowth, the Americans define systems of standardization (ISO 14001 on environmental management, future ISO 26000 on the Social responsibility of the companies…), that they wish to impose like an international standard. The methods of division of information are strategic in this process.
  • Ensuite comes the laws ( acts ), which can be different at the federal level and the level from the States.

Standards

One does not find in the United States the equivalent of the Code of the environment French.

On the other hand, the questions of Environnement are tackled in a completely transverse way by indicators of Gouvernance of company: one does not reduce the problem to some Gaz with greenhouse effect, but one seeks to structure of the Référentiel S starting from more than one hundred of indicators being distributed between the environment, the social one, the economic one, and the governorship, in the Social responsibility of the companies.

Environmental information is managed in governmental registers in a way such as they can be cross with the information in legal matter also managed in governmental registers.

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