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Environmental Law Network International 1/2003 absence of formal international accords transnational corporations would be bound to international standards relating to the environment, labour relations, human rights and transparency. This did not meet with general agreement. Rather, apart from weak statements on the promotion of corporate responsibility (No. 122 (f)), the WSSD has opted for a voluntary, cooperative approach for achieving practical results for sustainable development (No. 150). The idea underlying this concept of public/private partnership is cooperation between particular in dustrial and developing states, industry and NGOs in concrete sustainability projects (denoted as Type II partnership). 60 of such partnerships have been announced at the summit. This development mirrors the increasing reliance of states in their domestic environmental, social and economic policies on voluntary agreements and other forms of self-regulation. However, in the absence of guidelines as to the nature and extent of requisite industry commitments and consistency with national sustainable development goals it remains to be seen whether the voluntary approach is an equivalent substitute for full governmental commitments in the sustainable development process. It may open the door to privatising basic governmental re - sponsibilities such as supply of drinking water in developing countries at the expense of the poor. Arguably, with experience gained on the various projects, some common understanding about indis - pensable requirements for relevant participation can be developed. The Commis sion on Sustainable Development will have to play an important role in oversight and guidance. Development of Environmental Law Finally, from a legal perspective one must deplore the marginal role played by environmental law at the WSSD. In the general part of the implementation plan, commitment of all states to democracy, the rule of law and human rights was underlined (Nos. 4, 5, also No. 120 bis). Some important principles of environmental law such as the precautionary principle (in the attenuated form of “precautionary approach”) and the polluter-pays principle have been mentioned in the implementation plan. However, all attempts to achieve progress on Rio principle 10 – access to information, participation and access to justice – suffered a major set-back. This is especially true of access to justice, but participation did not fare much better (see No. 146 bis: states should promote public participation). The proposal to establish international guidelines for access to justice, at least to call upon the states to ensure access to justice, and thereby open the door toward global commitment to the Aarhus Convention approach failed entirely. Access to justice is no longer mentioned at all and No. 152 of the implementation plan about the “possible relationship” between environment and human rights has remained rather vague as well. Under these circumstances the only encouraging signal from Johannesburg in this respect comes from the World Judges Symposium held immediately before the summit 5 which underlined the need for “improvement in the level of public participation in environmental decisionmaking, access to justice for the settlement of environmental disputes and the defence and enforcement of environmental rights, and public access to relevant information”. 5 Environmental Policy and Law 32 (2002), 236 3
Preamble 4 1/2003 Environmental Law Network International The European Convention and the Future of European Environmental Law- Resolution of the Avosetta Conference - October 11/12, 2002, Amsterdam The Avosetta Group is a small informal group of lawyers whose main purpose is to further the development of environmental law in the European Union and Member States. "Avosetta" is the Latin name of a rare bird which caused the European Court of Justice to establish far reaching principles of European Nature Protection Law in the German Leybucht Case. The group held its inaugural meeting at Bremen University in January 2001. Those participating in Avosetta are invited out of recognition of their outstanding distinction in European environmental law, and take part in a personal and independent capacity. Nevertheless, Avosetta discussions aim to reflect a comprehensive crosssection of legal cultures within Europe, and will generally include up to two participants from each Member and Accession State. At its meeting on October 11 and 12, 2002, held in Amsterdam it adopted a resolution on ‘The European Convention and the Future of European Environmental Law’. In view of the draft ‘Constitutional Treaty’ presented by the Presidium of the Convention on October 28, 2002 the final text of the Avosetta Conference was approved on November 2, 2002. 1. The Integration Principle of Article 6 EC should be maintained in the new Constitutional Treaty under Title III ‘Union Competences and Actions’. 2. The objectives and principles in the current Treaties (Art. 2 EU; Art. 2, 6, 174 EC) on environmental protection and sustainable development do not need any major changes, but should be maintained in the new Constitutional Treaty. The following amendments would however be advisable: a. to include in Art. 174 (1) fourth indent a reference to possible ‘unilateral’ measures. The text of Art. 174 (1) fourth indent will then read as follows: ‘promoting measures at international level to deal with regional or worldwide environmental problems. Such measures may include unilateral ones, without prejudice to other international obligations’. b. to include in Art. 174 (2) the principle of ‘sustainable development’. c. to include in Art. 174 (2) the principle of ‘inter-generational equity’. The text of Art. 174 (2, second sentence) should then read as follows: ‘It shall be based on the principle of sustainable development, the principle of inter-generational equity, the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. 3. All decisions on environmental affairs (Art. 174-176 EC) should be taken by co-decision. We suggest to delete Art. 175 (2). (1) As to provisions of a fiscal nature taxes in general (including the “greening” of general taxes) are anyway to be founded on Articles 90 to 93. Art. 175 can only be the basis for special environmental charges which are not taxes in the proper understanding of the term, such as e.g. a charge on aircraft emissions, on the discharge of waste water, etc. The same is true for the selling of emission rights. As these measures are environmental protection instruments complementing or replacing more traditional “direct and supervise” measures, there is no reason why they should be decided by special procedures. (2) As to measures concerning town and country planning, land use and management of water resources, these should indeed remain the primary competence of the Member States. This can however best be secured if they are not mentioned at all as a Community comp etence. The directives given by Art. 175 paragraph 1 EC provide sufficient guidance not to allow intrusion into these competences if they are not specially required by environmental concerns. (3) As to energy policy measures “significantly affecting a Member States’ choice” will in most cases anyway be based on Art. 155 and/or Art. 86. Should there be specific environmental goals to be attained in the energy policy field these measures do not significantly differ from other environmental protection measures. Therefore they should be decided according to the same procedures.
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