The New Tunisian Constitution: A Reading into the Rights of Future Generations

2015-08-07    |   

The New Tunisian Constitution: A Reading into the Rights of Future Generations

The very concept of the rights of “future generations” poses a fundamental question of law: who are the holders and beneficiaries of rights? If the law is customarily for specified holders of rights, the idea of a beneficiary who does not exist, or who may come into existence in the future, challenges the basis of the law. What rights must be guaranteed to those who do not yet exist? And who will guarantee and implement them?

This legal dilemma arose as a component of the third generation of human rights. This group of rights considers not only individuals, but existing or future groups as beneficiaries. It includes environmental rights, the right to development, and [the right to] solidarity. The Declaration on the Responsibilities of the Present Generations Towards Future Generations is the best model for this relationship between present and future.

In 1997, UNESCO issued a declaration with 12 articles that defined the responsibilities of present generations to fully protect the needs and interests of both current and future generations. This included the responsibility of present generations to protect the right to a sound environment and to universal sustainable development, as well as to ensure that “future generations benefit from the richness of the Earth’s ecosystems” by refraining from bequeathing irreversible problems or damage. The Tunisian Constitution of January 27, 2014 establishes the guarantee of “the continuation of a secure life for coming generations”.

1. Features and Spheres Involved in Constitutionalizing “the rights of future generations”

The Constitution of January 27, 2014 includes the concept of future generations, as well as the means for regulating that concept on a number of levels.

Explicitly confirming the rights of future generations

It is noteworthy that the direct enshrinement [of this right] links the rights of future generations with environmental rights, and with the right to sustainable development. This is evident from the text of the preamble, which explicitly links “the necessity of contributing to a secure climate and to the protection of the environment to ensure the sustainability of our natural resources, and the continuation of a secure life for coming generations”. This is further confirmed in Article 42, which stipulates that the state “shall protect cultural heritage and guarantee the right of future generations to it”. It is explicitly supported on the institutional level in Article 129, which stipulates the establishment of a Commission for Sustainable Development and the Rights of Future Generations.

This approach to constitutionalizing the rights of future generations raises the important issue of how this term is defined. The Tunisian Constitution, along with a number of national and international legal texts, specifies that the term must be enacted, but without defining it or specifying what it comprises. The Constitution’s inclusion of this principle is an acknowledgement of the rights of generations that are still developing or which have yet to come; it should not escape notice that the concept of future generations goes beyond the rights of children and youth to include the rights of those who have not been born as well.

2. Constitutional Additions to the Field of the Rights of Future Generations

The question addressed here is whether the new Constitution’s explicit endorsement of the concept of future generations constitutes an adoption of the concept along with its “legal” ramifications, or if it is merely a political or moral declaration free from consequences in the sphere of rights and duties. Further, how might the law (in the broad sense) grant this concept legal implications on the one hand, and generate a set of related rights and duties on the other?

The moral case. In its preamble, the Constitution guarantees “the continuation of a secure life for coming generations”, and “the sustainability of our natural resources”. This constitutes a moral obligation to achieve a kind of equity between generations. The idea that future generations are subjects of the law, particularly in the fields of the environment and development, can be found in the preamble of the Washington Convention of 1973, which addresses the trafficking of animal and plant species.

This idea was also supported in the Brundtland Report of 1987, which explicitly affirmed that “the large-scale exploitation of limited resources will destroy natural unity and impoverish future generations”. It was subsequently recognized in all of the international conventions that emerged from the Earth Summit in Rio (e.g., the preamble of the Rio Convention on Biological Diversity and the Convention on Climate Change).

In the realm of international law, the International Court of Justice ruled on September 25, 1997 regarding the obligation of equity towards future generations. The basic principle is to consider natural resources (and other resources, like cultural resources) as heritage transferred from generation to generation, which no generation has the right to waste or monopolize.

The legal case, [which would make] the principle of protecting the rights of future generations compulsory. In view of Article 42 of the Constitution, the following is required of the state: it “shall protect cultural heritage and guarantee the right of future generations to it.” This article represents a straightforward model for establishing the right of future generations and the state’s assumption of the responsibility to ensure it. This is the sole case in which the Constitution explicitly guarantees this. So how can we measure the extent of the current generation’s responsibility towards future generations?

Reading the text of the Constitution in light of its preamble, which specifies the guarantee of “continuation of a secure life for coming generations,” would render all of the rights, freedoms, and constitutional guarantees mechanisms for enshrining future generations’ right to a level of development no lesser than the level enjoyed by the present generation. This establishes legal and institutional responsibility towards these [future] generations. Such a responsibility, which cuts across time and generations, can be exercised through the following primary areas:

Conserving what already exists: this occurs through the present generation’s role in conserving both material and intangible cultural heritage, as it was received by the current generation from the previous ones;

“Rational” use and administration of existing [resources]: this is concerned fundamentally with natural resources, particularly water, soil, energy, and biological diversity, including genetic diversity. The current generation must refrain from seizing all of these resources and squandering them; and

Developing [existing resources]: the responsibility to find new resources (wealth) for the present generation to bequeath to future generations.

These three levels require putting principles and mechanisms in place whose implementation will ensure the rights of future generations. Therefore, it is worth considering what legislation would be necessary for the 2014 Constitution to be implemented in this area.

3. Implementing the Constitution to Protect the Rights of Future Generations

Through its explicit reference to the rights of future generations, the 2014 Constitution also includes a set of rules and principles by which these rights might be drawn up and implemented. This is fundamentally tied to fields that include the environment, natural resources, development approaches, and economic, social, and cultural rights – as well as the establishment of a framework concerned with the rights of future generations.

“The State Shall Guarantee the Right to a Sound and Balanced Environment”

Starting in 1988, environmental legislation in Tunisia has regularly emerged to encompass nearly all [fields]: forestry, environmental impact, renewable energy, natural resources, revisions of water codes, biological agriculture, and establishing environmental structures [through] the National Agency for Environmental Protection, the government ministry responsible for the environment.

Since then, the evolution and diversification of environmental issues prompted the issuance of a number of legal texts. Given their uneven significance at certain points in time, and the lack of coordination between them, it is not easy to unify them. Starting in 2005, this led to serious consideration of an environmental code; efforts towards implementing such a code began in earnest in 2010. The technical draft, prepared by experts of the ministry responsible for the environment was submitted at the end of 2013. This important legislative work aimed to put into place a consistent law that covered all environmental legislative angles. This would strengthen and standardize environmental legislation, address its shortcomings, explicitly affirm the rights of future generations, and put mechanisms into place to ensure those rights.

In principle, the draft code affirmed all the principles of environmental law: the right to information about the environment, the right to participation, the principle of prevention, and the right to environmental litigation. With regard to protecting the rights of future generations, the draft likewise enshrined the precautionary principle. According to this principle, in the absence of certainty that an activity will cause environmental damage, that activity must be avoided or limited until certainty is possible, even if that takes decades. This clearly reflects the principle of the present generation’s responsibility for future generations; the current generation may not decide to act in such a way as to deprive or implicate those to come.

In terms of mechanisms, the draft supported protective measures, in particular an environmental impact assessment for public circulation, so that in addition to projects and equipment, these measures would include texts of various kinds: strategies, policies, plans, and legal texts. Thus, future generations would be shielded from the mistakes of the current generation, not only through projects and equipment, but also in terms of major decision-making.

In terms of additions to existing environmental legislation, the draft significantly enriched the concept of protected areas as well as the system regulating them, the regulation of biological security, and the protection of natural scenic areas, mountains, and oases. It also established a system to regulate noise, visual, radiation, and light pollution.

“The right to water is guaranteed. Conservation and the rational use of water shall be a duty of the state and society”

By its nature, the right to water is a fundamental right directly connected to the right to life. It is not explicitly acknowledged in the water code of March 1975, despite numerous revisions. However, the inclusion of this right in the Constitution as a result of pressures and the struggles of civil society organizations, requires a reconsideration of the legal system that regulates water in Tunisia.

A reconsideration of the system actually predates both the adoption of the Constitution and the events of January 14, 2011. In 2009, a committee of experts, under the supervision of the Ministry of Agriculture, set out to set up a new version of the water code – either by revising the existing law or issuing a new one, with regulations for its implementation. They decided to form a new code, and the committee submitted its technical draft to the government in June 2012. The draft should be ratified into law for a number of reasons, the most important of which are as follows.

The new draft code is based upon a crucial philosophy that is completely different from the 1975 code, namely, the scarcity of water and the difficulties of obtaining it. Unlike the [philosophy underpinning] the 1975 code, such a philosophy lends itself to an approach towards management and usage based upon demand rather than supply. Relying on this approach leads to improved usage and governance of resources, as well as the protection of water reserves for the future;

Including a right-to-management approach to water resources within the framework of a sustainable development approach, strengthens the environmental and social aspects of this approach without an overemphasis on the economic dimension;

Building an approach based on the principle of “the unity of water”, integrated management of water resources, and the possibility of distributing water according to water basins. This would strengthen the decentralization of water management;

Strengthening [water] management among groups and associations;

Support for a legal and institutional framework for addressing floods and natural disasters, especially water shortages and drought;

Strengthening monitoring mechanisms and traditional responsibilities with new effective mechanisms, including arbitration, mediation, and reconciliation; and

Efforts to develop water resources and find new and sustainable resources.

This new approach to water in Tunisia would also require a regulatory structure specific to water issues in order to balance the various overlapping [claims], particularly those of economists, and balance among the different uses of water, be they economic, social, or environmental.

“Natural resources are the property of the Tunisian people; the State exercises sovereignty over them in their name”

Current Tunisian legislation addressing natural resources comprises numerous legal texts, including the mine code (issued via law 30 of 2003, dated April 28, 2003), the fuels code (issued via law 93 of 1999, dated August 17, 1999, and revised on a number of occasions), and the law regulating energy (no. 72 of 2004, dated August 2004).

This legislation, while significant on the technical level requires reconsideration today, particularly in terms of granting licenses (for use, exploitation, and exploration), as well as the requisite monitoring. The philosophy that current Tunisian legislation is based on, from the natural resources field (which includes resources like forests, water, and soil), centers on the primary role of administering the granting of licenses, selecting contracting parties, and monitoring implementation. It is clear that such an approach contradicts Article 12 of the Constitution, which specifies that the people are the owners of natural heritage. Given this, the the people’s representatives (the elected legislature) have the primary role in exercising sovereignty over natural resources, by approving agreements in connection with those resources.

This new constitutional approach was affirmed by the temporary body for monitoring the constitutionality of draft laws. In the body’s decision regarding a draft law on electrical production through renewable energy, for example, it made clear that a number of its articles contradicted Article 12 of the Constitution. They argued this on the basis that the draft law granted the government (specifically, the ministry responsible for energy) broad powers to ratify conventions relevant to energy production without review by the Assembly of the People’s Representatives and its committees.

Future legislation must also clarify what natural resources comprise, and establish a public legal system for their distribution. This could occur within the framework of a code, or a comprehensive legal text, about property belonging to the public. This idea dates to the early 1990s, with the creation of the Ministry of State Property and Land Affairs. It was established along with a draft code, but that code was never put before the People’s Assembly to be circulated and approved.

As it is, the role of public property remains derived from dozens of legal texts, each of them different and full of exceptions in terms of protections, administration, and the potential to pass into the private domain and be liquidated without any legislative oversight. The legal texts that regulate public property grant the executive, especially the previous and current presidents, the power to change the legal nature of properties, and thus the possibility to liquidate them.

This approach to handling public property is entirely at odds with the rights of future generations to natural resources and public property, particularly at the most basic level in terms of the requirement to administer them through conservation, and “refraining from liquidating them” or allowing their ownership to lapse with the passage of time. This latter approach promotes the notion of an inventory that the current generation uses, develops, and passes on to future generations in at least as good condition as it was received, and preferably in better condition – more developed and enriched. The time has come to dust off the public property code and revise it in light of the constitutional principles related to governance, participatory democracy, and the people’s sovereignty over their resources.

The Sustainable Development Commission and the Rights of Future Generations

In its section on constitutional commissions, the Tunisian Constitution institutes a Commission for Sustainable Development and the Rights of Future Generations (Article 129). NGOs with connections to the environment and sustainable development (in particular the Tunisian Federation for the Environment and Development) are now working to create a draft law for the commission, and are preparing a strategy to present it and mobilize support for its acceptance and ratification. The text of the Constitution makes clear, in concise terms, the general principles upon which the law must be based. These principles appear in Articles 125 and 129. In this article, I will focus on the commission’s prerogatives.

To begin with, Article 129 only grants the commission advisory powers: it “shall be consulted on draft laws related to economic, social, and environmental issues and on development planning”, and shall “give its opinion on issues related to its specializations”. This specification of the commission’s powers prompts two observations:

The commission’s intervention is required in relation to draft laws and draft development plans. While these texts are important, limiting the commission’s purview to these two types of texts could prevent it from expressing opinions on draft [executive] orders. These are issued by the president and can affect future generations: examples include the regulation of government contracts, environmental impact assessments, and urban planning.

The commission’s role is limited to presenting its advisory opinion. In other words, it will not have a reporting or regulatory role in the areas of sustainable development and the rights of future generations. This detracts from the value of its work and the opinions it expresses.

How, then, can the law that regulates the commission move beyond these basic obstacles to strengthen the commission’s role and affirm the need for it?

In this context, it would be fitting to expand the list of those who might seek advisory opinions to include a number of elected representatives (e.g., 10 legislators), as well as citizens, on the basis of popular petitions, in addition to having the president and government consult the commission’s opinion. In order to strengthen this role, the law establishing the commission could require it to develop relationships with NGOs. This would be arranged with input from these organizations, and a day specified for the commission to present a report on the NGOs.

Overall, implementing the constitutional articles connected to sustainable development and future generations (the articles on the environment, heritage, and those related to natural resources and the sustainable development commission), would represent only a part of what is required to protect future generations and to ensure their rights to development, and to a sound and balanced environment. Such a task demands a reconsideration of the broader group of inequitable legislative texts addressing various segments of society (children, youth, women) – texts that do not reflect the desired development model. According to the Constitution, this should be based upon participatory democracy, “good governance”, “balance between regions”, and “the proper exploitation of national resources”.

This article is an edited translation from Arabic.

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