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1、SESSION 3 NATIONAL ENVIRONMENTAL GOVERNANCE AND THE ROLE OF LAW CHAIRPERSON JUSTICE GUY CANIVET (President of the Cour de Cassation, France): Thank you for that presentation both of the compendium and the internet site. Essential tools for judges to on international law. So this then was a perfect i
2、ntroduction to the meeting this afternoon. To begin, I would just like to say dear colleagues that I am very grateful, the French Court of Cassation is honoured to have been invited to the Global Judges Symposium on Sustainable Development and to have asked me to preside over this Session on Nationa
3、l Environmental Governance and the Role of law. French jurisdiction like many others attach the highest importance to this debate. So what we have here is representation with a view to taking part in a raising awareness exercise concerning the willingness to put these decisions on sustainable develo
4、pment into practice. We as French Judges are convinced that the balance between development taking account of the planets ecological instruments and the maximum use of resources, combating inequalities, eradicating poverty, all to be seen in the context and as an extension of human rights. These are
5、 the most important activities, the most innovative activity to be noticed in years to come. In France as is elsewhere, many decisions have already been taken by higher courts, by administrative or judiciary bodies to administer environmental law. But those decisions, in my personal view, are just t
6、he beginning of considerable judicial precedent that will design our system in the future. The question of sustainable development, as many have already said, is to bring together all debates of law, international, public law, international private law, comparative law and as was said this morning,
7、the philosophy of law too, to contribute to the emergence of universal, legal values, a sort of common law for sustainable development. These legal instruments should make it possible in different jurisdiction within the limits of authorities and separation of powers and we do not want to get into t
8、hat debate, to make it possible for mutual recognition of decisions and accordingly to ensure application in countries other than those where those sentences have been handed down. To bring these decisions into line, to ensure that the convergence by interpretation of law or indeed by construction,
9、harmonization and effectiveness and national and international law on sustainable development. In order for those conditions to emerge and once again taking account of the different jurisdiction and in their respective areas, its clearly necessary for judges whose states have means to organise such
10、procedures to allow the implementation of sustainable development of law in terms of environmental governance. Therefore, it is essential for States to fulfil a number of conditions. The first has been mentioned at length this morning, so I dont think its really necessary to get back into it in our
11、debate, each State should be given an independent judicial authority, independent of the political authorities, but also independent of all private in order to be sufficiently strong to hand down its decisions, not only to the public authorities, but to the most powerful private interest too. It is
12、also necessary for States to organize competent informed bodies to produce judges who are well aware of environmental law. It is also a need for individual and collective action on constitutional law, public law, private law and criminal law, making it possible for ordinary people to ensure that jus
13、tice is administered effectively. In particular, it is necessary for States to create or allow to be created procedures making it possible to control and verify the legality of decisions taken on environmental matters, but also actions which will make it possible for ordinary people to oblige the St
14、ate, to take positive action on environmental matters. As was said this morning, the principles of sustainable development go much further than private interests, so it is also necessary to see recognition at the national level of the general nature of what can be protected under sustainable develop
15、ment and environmental law so that public agencies can be set up, for example, among these we can refer to the Prosecutors Office here who could ensure that such laws are applied. But lawyers and counsels also have to be properly trained on environmental sustainable development law and ordinary peop
16、le have to be well informed of their rights and these actions and that they can have the necessary legal aid in order that they can undertake such actions. So these are the various ideas I wanted to open up before giving the floor to Justice Charles Gonthier of the Supreme Court of Canada who will p
17、resent an introductory report to be followed by Justice Zhang Jun, Judge of the Supreme Peoples Court, China, Justice Muhammadu Lawal Uwais, Chief Justice, Supreme Court of Justice, Nigeria and Justice Jahaz Hanna Salim Halasa, Judge of the Court of Cassation in Jordan. So Justice Gonthier, you have
18、 the floor, sir. JUSTICE CHARLES GONTHIER: Thank you, Mr. Chairman. Sir, distinguished delegates, ladies and gentlemen, it is indeed a great honour and opportunity for me to be part of this extremely important and timely symposium on the eve of the upcoming World Summit of Sustainable Development. I
19、 speak to you with a background of the crucial underlying realities so ably stated this morning by Mr. Justice Weeramantry. I also speak to you to elaborate perhaps on certain of the ways which the Chairman of this session has just outlined. I should note that of course in this brief presentation it
20、 is not my place to provide a survey of all systems of national environmental governance. The countries of the earth are as diverse as the different species in an ecosystem. With this in mind and with great interest in the worlds different legal traditions, I very much look forward to the comments o
21、f my colleagues on the panel. Having been a member of the Supreme Court of Canada for some years my presentation will rely mainly on the experiences of my Court and my country, experiences which spring from both the common and civil law traditions. I hope to not only identify some general themes wit
22、hin my discussion, but also be provocative enough to inspire comparative comments and debate. Environmental governance and the role of law are challenges. Environmental governance as a starting point raises several questions. Governance of what? By whom? And for whom?. What is environmental governan
23、ce?. National environmental governance can be described as the regimes including principles, institutions and participatory mechanisms which ensure compliance with the national environmental laws and standards. Seen broadly, it is also about the setting of national goals, the rules which achieve the
24、se goals and the people who make it work. Good governance is not simply about respect for the black letter of the law, but also about faith in the rule of law itself. Fundamentally, governance is about people. It is underpinned and bolstered by broader social recognition of the importance of environ
25、mental values and a spirit of solidarity, or as I put forward in Montreal, “fraternity”, being reminded of article 1 of the Universal Declaration of Human Rights, all human beings are born free and equal in dignity and rights. They are endowed with reason and conscious and should act towards one ano
26、ther in the spirit of brotherhood. According to the World Resources Institute, environmental governance including compliance and enforcement can be weak due to ineffective and inefficient institutions, unrealistic environmental standards (regulatory and management frameworks), weak judicial systems,
27、 limited participation of local communities and the public, and lack of technical capacity. These problems are exacerbated by poverty and as such may be particularly relevant for developing countries. While the law is only part of the broader environmental governance system, particularly on the nati
28、onal level, it has a role to play in addressing all of these challenges. The next question is governance of what?. This is not a simple question. Governance of the environment itself is of course, almost impossible. Even if we had full scientific certainty about the nature and extent of most environ
29、mental problems, nature is extremely complex and powerful. The environment itself is actually the sum of many natural and human made characteristics, from rivers to mountains to production such as pollution to desertification or deforestation. Each problem requires its own set of solutions, complete
30、 with rules which must be followed. When we speak of environmental governance we really mean the governance of human affairs as they affect the environment. This governance is a daunting challenge, but the role of law is clearly quite significant within it. Put simply the law can provide instruments
31、 to ensure that humanity moves forward in the way that is respectful of the environment, a way that may be sustained overtime. National environmental laws can contribute to the goal of environmental protection and further in conjunction with social and economic laws can ensure a commitment to sustai
32、nable development. This happens through incentives, inducements and by recourse through authority. But at the heart of environmental governance lies several paradoxes thrown into sharp relief when we consider the role of law more deeply. First, environmental challenges and opportunities come from ma
33、ny different aspects of human society. They cut across many economic and social sectors, health, agriculture, energy and natural resources to name but a few. Such a complex set of issues requires not one, but essentially many problem based solutions. Most environmental law and jurisprudence are as s
34、uch all over the map. They address clusters of issues as climate change on the one hand to biodiversity and ecosystem restoration on the other. The solutions are tailored to the problems at hand leading to a complex multi-sectoral web of laws all related to the environment. Second, the environment i
35、tself knows no borders. The environment is global in terms of the planet earth, but also fundamentally local, each small creature operates as a microcosm. Therefore ecosystem boundaries rarely map to political jurisdiction. However, most current environmental laws are national. In a federal system s
36、uch as Canada, they are even sub national. National environmental governance is part of international governance, environmental governance and it encompasses local environmental governance. Much more need to be done to strengthen the effectiveness of all these levels. As recently observed by the Wor
37、ld Bank, over the last decades the pace of economic globalization as outstripped the development of political institutions necessary to manage its environmental impacts at local and global levels. While it was necessary to govern the environment at the national level, it must be done in the manner t
38、hat reflects the shared responsibility, one which others depend upon as much as does the country or community doing the governing. When we consider national environmental governance, we must take into account these challenges, both of overlapping institutional mandates and overlapping scales. These
39、paradoxes come from differences between the environment itself and the way human society govern their activities which impact on the environment. This brings us to the next question, who carries out environmental governance?. As we will discuss here, this question is also challenging. In most countr
40、ies, as suggested by the topic of this question, it is the national Government which is the main actor. In countries such as my own, this responsibility is shared with provincial or sub national units down to the municipal level. But governance is also much broader than simply different levels of Go
41、vernment. Increasingly environmental governance is done by industry in the new ways that they conduct their affairs, by Civil Society organizations in the protests they make, and the projects they do and by each and every individual. The law plays a special role in this changing state of affairs and
42、 the law can also facilitate access by all individuals and interested sectors of society (major groups in the language of Agenda 21). This raises the final general question, for whom is environmental governance done?. Many actors, particularly the major groups are relevant and interested parties in
43、determining how humanity will impact upon our resources and the ecological communities of which we are members. In short, environmental governance is everyones business. It depends on access to information and legal redress for those members of the public who are willing to participate in its functi
44、ons. Now, I simply observe that the law can provide the back bone for a democratic transparent and accessible system of environmental governance and that increasingly, legal rights, including legal standing, are being granted to citizens whose environmental concerns require them to seek information
45、or access to environmental justice. But a further moral obligation also exists, that of the need to protect and stand in solidarity with the interest of those yet unborn. Sustainable development is concerned not just with the present, but with the future, and seeks the achievement of a healthy envir
46、onment and society that will continue to maintain and renew itself. Fundamentally, human activities with regard to the environment must be governed for these future generations not only of humans, but also for the broader living communities of which human beings form a part. The role of the law in t
47、his undertaking is not just important, it is crucial. Just as law can protect the interests of un-named heirs, or minority shareholders, so can the law protect the interest of future generations. But it must be based on serious, efficient systems of environmental governance, with the participation o
48、f all interested parties and it must serve to protect the interest of the future without compromising the needs of today. National environmental governance systems can address these considerable challenges. Certain trends which have become subject much debate in the World Summit for Sustainable Deve
49、lopment and in which the law place a key role can be observed. In particular, I would like to address three. First, increasing participation and accountability for environmental performance. Finding ways to involve all actors, including Governments and industries and individuals and hold them accountable for their environmental performance. Second, ensuring that authority is placed at the right level, locating authority and capacity for environmental governance at the level closest to those affected where possible. Third, developing innovative relationships and institution