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July 14, 2005


French constitution gets a dash of green

[Rachel's introduction: France adds the precautionary principle to
its constitution.]

By David Case

Ahhh, the French. Toujours inexplicable. They chain smoke. They drink
enough espresso before noon to cause lockjaw. And they jam their veins
with butter, cheese, and beef. But despite how reckless they seem,
their leaders recently made a stand for public health, granting every
citizen the right to a balanced and healthy environment.

That's right. In their battles against climate change, genetically
modified organisms, and nuclear reprocessing, the French now enjoy the
support of an "environment charter" amended to the country's
constitution. "Decisions made responding to today's needs should not
compromise the capacity of future generations and other populations to
satisfy their own needs," the document's preamble proclaims. In 10
articles, it then outlines a series of environmental rights and
responsibilities incumbent on the French people, ranging from the
right to access information about the environment to an obligation
upon political leaders to promote sustainable development.

The charter, ratified this spring, was the pet project of President
Jacques Chirac, who first championed it at the time of his 2002
reelection. At first, the idea met with the typical opposition from
business groups. But Chirac, an astute politician, piggybacked the
charter onto an important national assembly vote that would clear the
way for the European Union constitution referendum.

In doing so, he undermined resistance from the right, which was
willing to go along with the add-on to ensure support for the E.U.,
explains David Michel of the Center for Transatlantic Relations at
Johns Hopkins University. While the E.U. referendum was later defeated
by a popular vote, the environmental charter (which wasn't put to the
people) had already prevailed by a margin of 531 to 23 in a special
joint session of the French parliament.

Hard Chirac Cafe

So why, readers may ask, would a conservative, business-friendly
president expend clout on a high-profile environmental initiative?
Chirac, who has been a strong supporter of the Kyoto climate agreement
and who delivered an unusually blunt speech at the Johannesburg world
summit, seemed earnestly to believe in the idea. But there were also
political motivations.

Internationally, France likes to be a leader on all matters European.
And when it comes to the environment, France conspicuously lags behind
other countries in the union, falling behind on implementing the
E.U.'s green directives, according to Yannick Jadot, campaign director
for Greenpeace France. ("Directives," in E.U.-speak, are requirements
for member countries to pass specific laws.) The charter was seen as a
sort of nuclear option that would catapult France to the forefront.
Moreover, by elevating the country's environmental profile, Chirac
would drive the wedge deeper between Paris and that crass, unpopular
Texan in the White House. "The charter enables France to stick its
thumb in the eye of the U.S.," says Michel.

On the domestic front, despite health habits that might perplex
Americans, the French populace actually has a substantial
environmental ethic. For example, citizens have valued natural foods
and non-industrial farming since long before the organic craze got
traction in the U.S.; food labels go so far as to describe the type of
sustenance served to chicken or cattle. When it comes to energy, a
French person consumes only about half the Btus of an American, and
the nation has cut its emissions of carbon dioxide by 20 percent since
1980, to the lowest levels in Western Europe. (By contrast, emissions
have increased in the U.S. by about 22 percent in the same period.)

And in recent years, a chain of environmental mishaps has left many
French feeling under siege -- and demanding answers. These threats
have included mad cow disease; "Frankenfoods" from the U.S.; a series
of unusual storms on the continent, including one that ravaged trees
in the historic gardens at Versailles; an unusually strong summer
heat wave blamed for the death of thousands of senior citizens; and a
pair of oil spills -- from the ship Erika, off Brittany, and from
the Prestige, off nearby Galicia -- that devastated birds and fish
and soiled hundreds of miles of beaches.

But what does the charter really mean? Is it strong enough to calm
Gallic nerves? Will the threats abate? Will the clouds in French cafes
dissipate, and Parisian streets no longer be minefields of poodle

Well, maybe. It's too early to tell for sure. While pundits agree that
the charter can't be ignored, they debate the extent to which it will
really make a difference.

Vive la Difference

The French hailed the charter as a first of its kind, and proponents
described it in grandiose terms. The amendment "raises sustainable
development to the highest level in our legal structure, alongside the
1789 Declaration of the Rights of Man and of the Citizen," declared
former Prime Minister Jean-Pierre Raffarin before it was passed.

In truth, constitutional environmental rights turn out to be more the
rule than the exception. Of the world's 190-odd nations, the
constitutions of 117 mention protection of the environment or natural
resources, according to an analysis by Earthjustice. Fifty-six --
including unlikely progressives such as Tajikistan and Angola --
explicitly recognize the right to a clean and healthy environment; 20
hold those who harm the environment liable. The U.S. Constitution, by
contrast, contains no explicit environmental reference.

Jeremy Shapiro, a France expert at the Brookings Institution, points
out that while the charter certainly makes a difference, it is not as
colossal as it might be in an American context. First, constitutional
amendments don't represent the monumental social shifts that they
typically have in the U.S. Nor are they very rare: France's current,
1958 constitution carries 19 amendments, five of which have been
enacted since 2000.

Additionally, Shapiro argues that unlike in the U.S., where lobbyists
and courts influence the interpretation of laws, the French government
maintains a high degree of control over its legal creations. As a
result, he says, France "can pass something like this that's
politically popular but, within limits, not have to live with the

Enforcement and interpretation of environmental rights largely depend
on the Conseil Constitutionnel, or Constitutional Council. That body
reviews laws in a role similar to the Supreme Court in the U.S., but
answers the queries of parliamentarians, reviewing the legal code to
determine constitutional compliance, rather than hearing cases brought
before it by outsiders. As a result, the French system is more
directly controlled by elites, and less accessible to the public. "The
Conseil is not the kind of place where civil-society groups can
exercise influence," Shapiro says. "It's made up of the grandees of
French political life. They're not going to be environmental experts."

The charter also depends on a fair bit of idealistic, but
"unactionable," language. For example, it calls for environmental
education and training, and suggests that research and innovation
contribute to the preservation of the environment, but it doesn't
commit to specific goals or standards on either of these items.

The American Chamber of Commerce in France, which represents giant
American corporations operating in the world's ninth-biggest economy,
yawned at the entire matter. Not only did the ACC decline to lobby the
issue, it hardly followed the debate. "Almost all of the environment
and workplace safety laws in Europe originate in Brussels" at the
European Union, explains managing director Stephen B. Pierce. "We
don't even have an environment committee in France anymore."

Throw Precaution to the Wind

Where the charter does pack a legal punch is in Article 5, which
enshrines the precautionary principle into the constitution. In the
case of potentially serious and irreversible environmental damage, the
article states, officials should implement measures to minimize the
risks. The precautionary principle had already been embodied in French
law in 1995, another reason why the charter's opposition didn't call
in the big guns. Yet there is little doubt that elevating it to a
constitutional level bolsters the green arsenal.

Now the principle trumps other legislation, and on routine government
business that pits the environment ministry against, say, the energy
ministry, the former will have enhanced fire power. Environmental
groups can also conduct their business with the gravitas of a
constitutionally guaranteed right behind them. This principle could be
used, for example, to restrict genetically modified foods, until
scientists can show that they are safe. And it will likely come into
play in the near future as the country debates whether to replace or
simply decommission nuclear power plants, which supply about three-
quarters of France's electricity. (Which "serious and irreversible"
risk looms larger: the unknown hazards of long-term radioactive waste
storage and Chernobyl-type accidents, or the cataclysmic risk of
climate change, for which proponents argue nuclear power is a remedy?)

Still, if the example of other countries is any indicator, French
greens will have to fight to sharpen the teeth on their charter.
"Russia's constitution has one of the strongest environmental
guarantees in the world. It goes on for pages," says Patrick
Parenteau, director of the environmental law clinic at Vermont Law
School. "China has a good one too, but they're both meaningless.
They're not enforceable."

But others do carry legal heft. In 2004, the Costa Rican Supreme Court
used the nation's guarantee of a "healthy and ecologically balanced
environment" to hold customs officials responsible for not cracking
down on fishing vessels using local ports to ship shark fins. (Fishers
slice off the fins to make the Asian delicacy shark-fin soup, a
practice that is damaging the predator's populations and endangering
the balance of aquatic ecosystems.)

"A constitutional guarantee is not just a wonky law," says Marcello
Mollo, a lawyer at Earthjustice. "It shows that a healthy environment
is a human right. And as seen in the Costa Rican case, it gives rise
to a whole host of legal remedies that don't exist under normal
environmental law."

For their part, eager French citizens wasted no time in invoking their
new rights, albeit in a manner far more pedestrian than its framers
may have imagined -- and with mixed results that may foreshadow the
results of future struggles. No, they didn't attempt to shut down
"les McDo." Instead, a group of conservation organizations used the
charter to get a court to block a 100,000-person rave that was to be
held in an area outside Paris recognized for its environmental value.
The case was filed, and the injunction awarded, just as les raveurs
were scheduled to arrive.

The charter definitely made a difference: the groups were only able to
get the injunction in time "because the case was urgent, and it
concerned a fundamental right of the French constitution," says
Michel. But in the end, local officials failed to enforce the
injunction. The rave went on as scheduled, trashing the site.

- -- -- -- -- -- -- -- -- -

David Case writes for Men's Journal, Rolling Stone, and National
Geographic Adventure. He lives in Brooklyn, N.Y., with his French
wife, who eats lots of cheese but never leaves an unneeded light on.

Copyright 2005. Grist Magazine, Inc.