More and more legal systems recognize some form of public entitlements to natural resources, including water, forest, and biodiversity in the form of adopting the public trust doctrine.
The concept of the public trust sees sovereign governments as trustees, rather than owners of natural resources. The public trust doctrine ultimately serves to account for the public interest vis-á-vis short-term economic interests motivating political decisions regarding the use and exploitation of natural resources and the environment. It conceives ownership over natural resources as being burdened with the interests of the public – both in the present and in the future.
This research will comparatively assess the adoption of the public trust doctrine in the constitutions and legislations of various states, including those in the V4+ region. This contribution will assess the potential of this legal mechanism for enforcing environmental interests of the public in the face of populistic narratives.
Under international law recognition gives states a large margin of appreciation and is vaguely regulated. Recognition of climate change as a fact poses significant challenges not only on legal level, but foremost to individuals’ perceptual and cognitive systems and therefore, fails to activate our moral intuitions. Complex climatological analyses are subject of experts’ knowledge difficult to be transferred to voters. Populism in sustainability’s context is about (mis-)interpretation of facts, whilst environmental challenges require multifaceted answers to complex problems often involving high public spending. Lack of emotional engagement and distress against high economic costs antagonize public opinion against international law. Transparent climate change scenarios and clearer information about their mitigation costs would reinforce the legitimacy of sustainability policies and the effectiveness of international environmental law.
The aim is to verify the extent at which the direct democracy solutions are capable of protecting common environmental interests, especially in the post-transition democracies. Populism appears as a threat which stems from a crisis of trust and lack of support for difficult decisions.
The proposed approach would be two-pronged. Firstly, the efficiency of international, European and national legal frameworks would be investigated in the context of vulnerable environmental interests and bottom-up actions, to determine whether the law equips the citizens with adequate tools. The main point of departure would be the application of the direct democracy provisions of Treaty 122.
Consequently, the usage of the provided tools would be examined in order to assess the inclusion of environmental issues and the results of the actions. This examination would be based both on figures and on feedback gathered from the stakeholders.
Ownership is never full, and always includes social content. The doubts, however, refer to the scope of admissible contravention of public (e.g. environmental) limitations in the enjoyment of private property.
The example vivid populistic and expert argumentation within this issue extends to the 2016 Polish bill ensuring admissibility of individuals to cut trees in private property without prior permission, unlike previous, severe, law. Its official justification underlined the importance of the consequently reintroduced fuller owner’s rights. The sprawling discussion confirmed the willingness to reach this aim, but also challenged new law as resulting in environmental destruction. Eventually, the bill was amended, weakening the threat of deforestation.
Still, the question extends to the scope of public interest in private ownership and the admissible cost of environmental policies to be bore by individuals. Also, particular danger of populism among affected subjects is researched.
Albeit “green” politics gains impetus in the EU, it has not been considered an important issue in Slovakia, even in recent elections. The populism in Slovakia, similarly as in the neighbouring V4 countries, is instead rather human-centered, searching for quick and easy cures to immediately present everyday human problems. Environmental interests are, in contrast, of a minor visibility.
The paper suggests, however that still closer link between individual interests and environment might be seen in the public health issues, starting from the quality and origin of food, which seemed to work in the V4 region's fight against the double standard of food in the EU. Similarly, the idea of protection of water even led to a change in the Slovak constitution, backed by the popular consent. However, risks and challenges of the public-health-oriented populism need to be taken into account as well – suffice to mention the panic related to corona virus, or the ongoing anti-vaccination movement…
Despite the fact that the representation of collective interests in national decision-making may counteract populistic tendencies, jurisprudence of the European Court of Human Rights and other European courts suggests that the representation of nature in national decision-making, in particular by environmental interest organizations, can sometimes be perceived as a threat by national and local (populist) decision-makers. This is mostly due to the fact that they represent collective interests which oppose the realisation of certain projects and legislation favoured by the (local) government and the popular opinion.
This paper will therefore map and review how European courts dealt with situations, where environmental interest organizations have come under threat in V4+ states. The paper also addresses the implementation of the respective judgments to assess whether the suggested solutions were indeed effective and helped to bring collective arguments back into the national discourse.