As the work of MEPIELAN Centre continues apace in 2019, it is steadily involved in bringing forward innovative legal thinking and approaches into the international discussion of a recurring but painfully open question: how to improve implementation and compliance issues of environmental treaty regimes with a view to advancing their sustainability governance.
MEPIELAN Centre, in the framework of its partnership with the UNE/MAP-Barcelona Convention, and, especially, as a Non-Contracting Party member to the 40-member Mediterranean Commission on Sustainable Development, has persistently advocated the promotion of the innovative, governance-related legal concept of public trust approach (PTA). In the context of the Barcelona Convention regime, this is a painstaking effort. The PTA is not a generally familiar approach to all kinds of international experts, representatives and negotiators. So, the need for its introduction into the Barcelona Convention regime – and into any other environmental treaty regime – as a solid legal and policy platform to address the sustainability aspects of such environmental treaty regimes, and thus substantially enhancing their implementation and improving compliance, requires the development of a careful strategy of its explanation and its appropriate incorporation into sustainability treaty governance.
In fact, it is quite challenging to test the PTA as a practical and innovative method to support environmental sustainability efforts in the framework of the Barcelona Convention/Protocols and MAP system (BCS) in view of its present, apparently imbalanced situation. The BCS is faced with a decisive gap in the implementation of its sustainability objective and obligation at regional and national levels. Approaches to sustainability governance and the application of the ecosystem-based approach have developed at the technical, scientific and political levels within the BCS. However, the legal basis for such governance is relatively weak, as static traditional legal concepts and rules of international law entirely overlook the “fiduciary” legal aspect of the relational basis and the sustainability governance of the dynamic BCS.
It is quite distressing that the sustainability obligations, commitments and governance strategies of the BCS largely remain devoid of any legal flesh. Stipulated, most emphatically, in the BCS (e.g. Preamble of the Convention, para. 2, Art. 4 of the Convention, Preamble of the ICZM Protocol, para. 3) and directly mentioned in the implementative decisions of the Mediterranean Strategy for Sustainable Development (MSSD 2016-2025) such obligations, commitments and governance strategies continue to be linked with a shadowy implementation. In its endeavor to open new windows for effective and efficient sustainability governance, COP-19 of the BCS, proceeded to link the objectives of the Mediterranean Strategy for Sustainable Development (MSSD 2016-2025) to the Sustainable Development Goals. Referring to objective 6 of the MSSD “Improving governance in support of sustainable development”, it made a clear reference to “the need to advance public trusteeship concepts in the existing instruments for better and more equitable governance and more effective and efficient public participation” (UNEP(DEPI)/MED IG.22/28, Annex, 155). This general commitment was reinforced by contributions of the Mediterranean Commission on Sustainable Development (MCSD) towards the COP-20 recommendation “to explore new legal concepts related to governance such as the “public trust approach”, which constitutes an interesting legal perspective for the coherent implementation of a number of SDGs” (Report, UNEP(DEPI)/MED WG.441/9, para. 84, 11), as noted at its 17th Meeting in 2017 (Athens, 4-6 July, 2017).
It would go beyond the purpose of this editorial, to elaborate on the PTA. However, a bird-eye view of its understanding and function may be illuminating at this stage.
Thus, under the Public Trust Approach (PTA), governments are legally entrusted by the public to protect and conserve the environment and natural resources, for the benefit of present and future generations. More specifically, governments are considered to be vested with a “fiduciary” legal obligation: to hold and govern natural resources in trust for its people, protecting and preserving the environment and resources as a unit in a sustainable manner, for the benefit present and future generations. Interestingly, the contemporary approach to the public trusteeship has mainly been developed in the framework of domestic orders: public trusteeship is well established in the US, emanating from the English Common Law of Charitable Trust, and is widely internationalized, in an expressed or implied form, in the Constitutions and Statutes of many States all over the world. The introduction of the PTA into the BCS brings an important “added value” to its implementation, compliance and governance in terms of sustainability. It legally fleshes out the sustainability dimension of the obligations of the Contracting Parties and giving concrete legal substance to overarching ecosystem-based approach, recognized as a guiding principle for the overall governance of the BCS (COP-17, Paris 2012).
Revisiting the operation of this Barcelona Convention from the perspective of the PTA would allow :
- to promote the sustainable use, management and conservation of natural resources and ecosystems ensuring that legal measures conserve biodiversity and ecosystem services in line with international and regional commitments;
- to promote the engagement of civil society, scientists, local communities and other stakeholders in the governance process at all levels supporting the organizational capacity of stakeholders and encouraging the adoption and implementation of the Aarhus Convention;
- to promote the implementation and compliance with environmental obligations and global and regional agreements related to environmental sustainability and to guide actions at national and regional levels; and,
- to promote the education and research for sustainable development (UNEP(DEPI)/MED IG.22/1 – UNEP/MAP Mid-Term Strategy 2016-2021)
Relatedly, the PTA as an innovative legal concept may effectively and efficiently contribute to the management coherence of a number of Sustainable Development Goals (SDGs):
- Coal 16: Peace, Justice and Strong Institutions – Promoting a proactive sustainability society, reinforcing the access to justice for all and building accountable institutions at all levels supporting their effective coordination
- Goal 15: Life on Land – Legally contributing to the protection and restoration of terrestrial ecosystems, the sustainable management of forests, the combat of desertification, the halting and reversing of land degradation and the halting of biodiversity loss
- Goal 14: Life Below Water: Providing an important legal platform for conserving and sustainably managing oceans, seas and marine resources
- Goal 13: Climate Action – Providing an important legal platform for citizen action and state enhanced due diligence for urgent actions to combat climate change
- Goal 6: Clean Water and Sanitation – Legally contributing, at all levels, for a sustainable management of water and sanitation for all
- Goal 4: Quality education – Promoting an important law and governance perspective in the education and research for sustainability
No doubt, there is a long way ahead. But, at the same time, it has become abundantly clear that without the appropriate ingraining of legal concepts derived from the protection and promotion of international common (public) interest, like the PTA, the role of the law-and-governance element will be seriously diminished at the expense of progressively attaining a level of sustainable environmental governance, nationally, regionally and world-wide. More than any other time, thoughtful public international law-and-governance thinkers and practitioners, in hand with scientists, public administrators and activists, are required to join forces to promote the trusteeship approach to the implementation of sustainable environmental governance.
About the author
Evangelos Raftopoulos
Professor Emeritus of International Law, Panteion University, Athens, Greece, Fellow, C-EENRG, University of Cambridge, United Kingdom
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Evangelos Raftopoulos#molongui-disabled-link
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Evangelos Raftopoulos#molongui-disabled-link
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Evangelos Raftopoulos#molongui-disabled-link
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Evangelos Raftopoulos#molongui-disabled-link