Do Environmental Principles have a Legally Binding Substance, or is it merely Soft Law?

We had a chat with Bjørn Bakke, PhD student at the Norwegian Centre for the Law of the Sea (NCLOS) about the topic he has devoted the last four years of his life to. Namely the importance of environmental law principles for fisheries management according to the Marine Resources Act.

At the outset, Bakke points out that the Norwegian fisheries management is, overall, very well-functioning. - There is a system where environmental principles have been implemented both at the constitutional level, in sector legislation (for example the Marine Resources Act), and in the Nature Diversity Act, which is cross-sectoral. Nevertheless, there is always room for improvement, he states.

When Bakke began the work on his dissertation, his hypothesis was that statutory environmental principles at least to a certain extent is hot air. - It is stated in the Marine Resources Act § 7 second paragraph letter b that the ecosystem approach shall be a key consideration when applying the law. However, if one looks to the preparatory work, it is stated that the principle has a distinctly political character and is not suitable for judicial review. What is it then that you have passed into the law, Bakke asks rhetorically?

Another vague concept is "sustainable development". - A common problem is that you use the term sustainability without clarifying its content and context. It is not always easy to know whether the term is used to imply political sustainability, economic sustainability, or ecological sustainability, he points out.

Bakke believes that the explanation may lie in the fact that environmental law concepts are often derived from international law and international politics. – These principles are often adopted in consensus-based processes. This means that the countries that are the least willing to lead with ambitious environmental policies often have the last word when it comes to the concrete meaning of a term, he states.

The Marine Resources Act is an authorization law, i.e., the Norwegian parliament, through the Act, gives other administrative bodies a limited authority to make general rules and individual decisions. Whether to build up or downsize a fish stock will always be a matter of priorities. But this does not mean that the fisheries administration can decide to do whatever they may want.

- It is clear that the environmental principles in the Marine Resources Act limit the margin of discretion, so that it cannot for example be decided to exterminate a species that is naturally occurring in Norwegian waters, Bakke points out.

- An improvement would be to clarify and specify what environmental principles require from the decision making in the fisheries administration. Take for example, the principle in the Nature Diversity Act § 8, that decisions must be based on scientific knowledge. It can be specified what is required when obtaining, controlling, and reassessing the knowledge base.

Among the basic problems of environmental law is the fact that nature itself does not possess legal agency, i.e., the seas can not sue anyone for overfishing. Some have argued that this problem might be solved by establishing special environmental courts, as is already the case in for example Sweden. Bjørn points out that special courts are not in line with the Norwegian legal tradition. And might even cause its own specific challenges.

- It is difficult to find a satisfactory solution on how the environmental courts and ordinary courts should relate to each other. A single environmental case is often complicated and has ripple effects in many other areas of law and society than just the environmental and environmental law. As well as raising questions that likely require specialized scientific knowledge to answer. These are factors may indicate that court proceedings are not the answer, Bakke reasons.

An enviromental ombudsman?

In Norwegian law, the administrative appeal is a practically important way of trying an administrative decision. According to Bakke the administrative appeal often falls short in environmental matters. But Bakke explains that administrative appeal often falls short in environmental matters. –  The fisheries administration is sector-based, and this means that a complaint is usually processed by the superior body in the same sector. If you complain about a decision made by fisheries bureaucrats, your complaint will most likely be processed by fisheries bureaucrats at a higher level, he explains.

- I have toyed with the idea of an environmental ombudsman, who has both the legal expertise, environmental expertise, and the fisheries expertise to supervise the administration of natural resources. As the civil ombudsman, an environmental ombudsman will be able to make statements related to individual decisions, but without having a right of judicial review. This may be a more appropriate way to control the environmental administration than the current scheme or a special environmental court, Bakke points out.

He is writing his dissertation in English and is scheduled to be submitted by the end of this semester. - Since the Norwegian fisheries administration is so well functioning, other countries can probably learn from it. Therefore, it is also an advantage that jurisprudence on Norwegian fisheries management is available to an international audience, Bakke concludes.

We at NCLOS wish him good luck in finishing his thesis and look forward to seeing and hearing more about the result!