...Civill Law, Is to every Subject, those Rules, which
the Common-wealth hath Commanded him, by Word,
Writing, or other sufficient Sign of the Will, to make uso
of, for the Distinction of Right, and Wrong; that is to say,
of what is contrary, and what is not contrary to the Rule.
Th. Hobbes: Leviathan (op. cit., Chap. XXVI, p. 312)
1. Prima facie, we should differentiate the notions of what is permitted and what is allowed.
Activity can be permitted by public authorities (or by an agency), and activity can be allowed by a civilian.
The question of what is possible or allowed, and what falls under the category of not allowed in environmental law, is a highly complicated topic.
In legal terms, tantum tibi licet quantum per leges licebit, id est an individual is at liberty to act as far as he or she respects the rules of law. Naturally, this reflects only the legal meaning of what is allowed. Even if we take the denotative legal meaning, a moral and a theological approach must be added. These latter connotations widen the average scope of view and furnish a close to perfect definition. This answers the question of what is allowed in environmental law.
Legal philosophy affords a great number of answers, often involving some sublime distinctions. Such nuances are to be observed in the statements of the philosophers quoted below.
In his work Leviathan, first published in 1651, Thomas Hobbes writes as follows: By Civill Lawes, I understand the Lawes, that men are therefore bound to observe, because they are Members, not of this, or that Commonwealth in particular, but of a Common-wealth. For the knowledge of particular Lawes belongeth to them, that professe the study of the Lawes of their severall Countries; but the knowledge of Civill Law in generall, to any man. (HOBBES, op. cit., p. 311)
Civil law is the law of a nation whose members are its citizens, vindicating the rules made to govern them, as well as to serve as a system of standards for comparison. I believe that this definition given by Hobbes in 17[th] century England is still of value for observers of environmental rights and duties.
Hegel completed the foreword to his Rechtsphilosophie (Philosophy of Law) in the summer of 1820. Der Staat ist die Wirklichkeit der konkreten Freiheit; die konkrete Freiheit aber besteht darin, daß die persönliche Einzelnheit und deren besondere Interessen sowohl ihre vollständige Entwickelung und die Anerkennung ihres Rechts für sich (im System der Familie und der bürgerlichen Gesellschaft) haben, als sie durch sich selbst in das Interesse des Allgemeinen Teils übergehen, teils mit Wissen und Willen dasselbe, und zwar als ihrem eigenen substantiellen Geist anerkennen und für dasselbe als ihren Endzweck tätig sind... (HEGEL, op. cit., § 260). Accordingly, concrete liberty is manifested in the state. Commoda publica, the raison d'État, play an emphasized role; and environmental interests are implied in the category of public interest. Family and society already appear as basic notions of our human society in this masterpiece by the elderly Hegel. Private law and private property are concomitant with the ideas of family and civil society. The substantial spirit (substantieller Geist), Wissen und Willen, i.e. to know and to want, fulfil the role of mobiles in Hegel's way of thinking. The state is shaped not after a subjective belief, but after the principle of wanting, unity and according to the will of God. The Pflicht, i.e. the duty linking the son to his father, is compared to the Recht, i.e. the rights and obligations of the citizens (Bürger) and the state. Thus, the notion of state = the monster Leviathan changes into the equation state = father. The Geist, i.e. the spirit, is immanent in both the family and civil society (the society of common people).
Righteous duties, as opposed to the rights of the everyday man, form the framework of an environmentally sensible society, which is keen on preserving its natural patrimony. Thus, an appropriate answer may be given to the question of what is allowed?: all that is in the interest of social values (such as nature and environment) is submitted to the values of family and society. It is the duty of the citizens to express their efforts, by means of an elected Parliament and Government, just as ultimately, sub judice, to protect nature and the environment. A knowledge in depth of the legal system of a concerned society is at the basis of observing and divulging the common interests of environmental and nature protection.
Law and decrees can determine the legal framework of allowances and the Constitution alike. Constitutional principles are enshrined in constitutional laws and, as we go downwards on the scale of law products, we also find the articulation of the details animating a legal institution among municipality and ministerial acts of law. The uppermost steps on this scale touch upon the question of environmen-
- 88/89 -
tal and nature protection in a more general way of expression than below, in a governmental decree, for instance.
Since the protection of the environment is expressed in the Hungarian Constitution, both among the General Dispositions (Általános Rendelkezések, §18) and among the Fundamental Rights and Obligations (Alapvető Jogok és Kötelezettségek, §70/D), rules concerning the environment and nature are always encountered in the form of constitutional acts. As an example, police crimes committed to the detriment of nature or the environment are regulated not by government decree 218/1999 on police crimes, but by Act LXIX of 1999; constitutional Act LIII of 1995 on the Protection of the Environment; constitutional Act LIII of 1996 on Nature Protection; constitutional
Act XXVIII of 1998 on the Protection of Animals; constitutional Act XLIII of 2000 on Waste Economy (Hungarian abbreviation: Hgt.); etc. A lower decree, in fact, cannot contrast with a higher law. Thus, the basic principles and the fundamental notions of environmental and nature protection find their place in the Constitution (also the form of expression of higher social values), whilst it is the simple laws, the acts of Parliament, that must specify the further notions and principles expressing the will to protect both nature and the environment. The lower acts of law comprise regulations on the details of implementation, etc.
The opposition of individualism and collectivism, as seen above in §260 of the Rechtsphilosophie, contrasts the family, the microcosmos, with society, the macrocosmos. Nevertheless, the individuum can realize its purposes by means of the society's legal institutions. This is the only legal means of self-expression for mankind.
The moral aspects of self-determination comprise a richer arsenal: street demonstrations, the psychic effects of the mass media on the population, the divulging of positive or negative information relating to nature and the environment, etc. These latter methods are also more or less covered by law: the Aarhus Agreement (which entered into force in the European Union and in Hungary on 30 October 2001; enacted in Hungary by Act LXXXI of 2001), Hungarian Act II of 1989 on the People's Right to Assemble, and so on. There is a narrow margin which relates to numerous democratic and morally verified tools of political pressure and self-expression. This narrow margin has the tasks of widening the territory of law, and also of offering an alternative solution to the problem of environmental and nature protection.
Briefly, what is allowed by the Constitution is not necessarily allowed by a moral approach, though many moral theses cannot find their place within the borders of what we call law. Consequently, when the question arises of what is allowed and what is not, there are at least two aspects (a moral and a legal one) whereby an appropriate answer may be given.
2. The legal and moral approaches to what is allowed and what is not in environmental law are clear. However, there is a third and more archetypical standpoint: that of the theologian, who holds that the environment and nature are God's creations, and thus canon law is applicable: Deuteronomy, 22.6: If you chance to come upon a bird's nest, in any tree or on the ground, with young ones or eggs and the mother sitting upon the young or upon the eggs, you shall not take the mother with the young; you shall let the mother go, but the young you may take to yourself; that it may go well with you, and that you may live long. Deuteronomy, 23.12,13: You shall have a place outside the camp and you shall go out to it; and you shall have a stick with your weapons; and when you sit down outside, you shall dig a hole with it, and turn back and cover up your excrement.
It is always instructive to refer to the Holy Scriptures, and in addition, the Bible is a proper source of all laws relating to present circumstances. Theology yields answers to a great number of questions that remain unanswered by law, philosophy and bioethics. The principles rooted in the fabric of the seething pot of humanity are the standard terms in law and in philosophy, this latter regarded as the servant of theology (ancilla theologiae) for several centuries.
Whereas individual personal comments might be made on moral and legal aspects, the theological view appears to be a more difficult question.
The theory of objectivization in law, as discussed before, and new sanctions in the service of nature and environmental protection, with the accent on easily available information (Sections 2 and 3 below), take their origin from the philosophical background, as seen above. Objectivization in a legal meaning is parallel to the moral content of this word, also seen above. The Kyoto Protocol serves as an excellent example of the new movements in the field of environmental protection, based on an ancient arsenal of notions and intelligence.
Law, philosophy and theology are triplets of the modern human mind. The law greatly restricts the liberty to act; philosophy makes this espace-temps broader and various, with regard to the principle of moral plurality, i.e. the social acceptance of numerous solutions to the same problem in ethics, the freedom of speech being ensured; and theology supplies the reasons why we have to consider all the rules of both morality and legality. As we shall see below, law is the new-born offspring of our ancient society, and
- 89/90 -
accordingly tends to receive more respect than its older siblings.
3. The moral, legal and theological aspects, as discussed above, fit into the framework of what is possible-allowed in natural sciences. Physical phenomena define the true and practical limits of legal, moral contemplation. However, we are not fully aware of what science (physics, chemistry, biology, engineering, and so on) makes possible, and what is scientifically allowed. Disregarding ethics in the sciences, a scientific possibility must always lie far beyond the moral and legal borders. From a materialist point of view, science offers the limits. Ethics and law are included in this larger circle, and the aim of mankind is to push the moral and legal standards to the limits of the sciences.
Problems deriving from air-borne pollution first appeared on a private law level, for the simple reason that courts did not care about the millions of human beings possibly affected by pollution mediated by the wind. In the United States of America, for example, the pollution of the air, so far as reasonably necessary to the enjoyment of life and indispensable to the progress of society, is not actionable. Another condition for a claim in private nuisance to be admitted sub judice is that the injury has been caused unnecessarily.
Air pollution was labelled a nuisance as long ago as in 1611 in William Aldred's Case. In this case, undesirable odours emanated from a neighbour's swine. The Court, in today's terminology, adopted the principle of coming to nuisance showing up somewhat later in the history, considering the odour of the swine in village surroundings to be normal. What would be a nuisance in Belgrave Square, would not necessarily be that in Bermondsey. In French law, judges developed the theory that someone moving to a village automatically accepts the willingness to be exposed to the effects of a nuisance nature that are inherent under village circumstances.
Courts have considered air-borne pollution from various standpoints, depending on the defended interests. Some famous have occurred in US common law. In the Madison v. Ducktown Sulphur, Copper & Iron Company case, the Supreme Court of Tennessee declared that, everything considered, around 2 million people would lose their jobs and living in consequence of an injunctive measure. Accordingly, the mining and manufacturing enterprises could not be compelled to put an end to their activities simply because one thousand farmers suffered from air pollutants.
In contrast, an injunction (for the future) and damages (to cover the harmful events that had happened in the past) were incumbent on the defendant in the Hulbert v. California Portland Cement Company case. In the balancing of the equities of the parties, the question of trespass or nuisance had to be answered. In the event of a nuisance, de facto existing damages are to be proved, whilst in the event of trespass, an injunction might be sufficient. If the nuisance is labelled public, a special injury, other than that the general public will suffer, is to be demonstrated. If it is private, the prescription may be a reason of exculpation. In common law, there is normally a certain period of prescription (e.g. according to the Prescription Act, currently 20 years in Great Britain), after which the wrong-doer cannot be sanctioned, thereby obtaining a prescriptive right. This happened in the Hulbert case.
In the event of a trespass, the defendant is presumed to have entered the plaintiff's land directly; however, a nuisance does not necessitate such a direct entry: the mere danger of it furnishes a proper condition to plead. Hence, a claim involving a public nuisance is generally better, though, antagonisms are induced. The public interest may be protected in a more effective way under a private nuisance régime.
The institution of nuisance is mostly suitable to cover personal injuries and trespass for damage against property (real estate). In this case, damage against chattels involves personal injuries.
Every unauthorized entry upon the land of another constitutes an actionable trespass. It should be underlined that, in fact, nuisance-rather-than-trespass arguments are rejected much more often than the institution of trespass. This is one of the main criteria why a case may be brought before a court. The principle of de minimis praetor non curat (i.e. the matter in question is not sufficiently relevant to be discussed before a court) is often alleged by the defendant, although almost never admitted as a reason for exoneration by the justices.
There is a third means of defence against air-borne damage, based on the damage generated by at least a negligence-type of fault-based liability on the part of the defendant, and a correct causal link between the damage that thus occurred and the defendant. When strict liability is at the legal institutional base, a lack of fault does not exclude the liability of the defendant. Thus, strict liability is often pleaded as an alternative régime, from the USA to France. In this latter case, the burden of proof is easier for the plaintiff, but, finally, it is more difficult to obtain a complete recovery. Both in France, and in the USA,
- 90/91 -
barristers may change régime during the civil procedure, and, when the régime of strict liability appears unsustainable, a fault-based reasoning is voiced.
1. The first steps leading to the Kyoto Protocol were the UN Stockholm Conference in 1972 and the Rio Conference in 1992. Besides Agenda 21, the Rio Declaration and Biological Diversity, the Framework Convention on Climate Change (UNFCCC) was discussed at the Earth Summit in Rio de Janeiro. This latter was followed some years later by the Kyoto Protocol. Industrialization is the main stream and also the most important reason for the emergence of these juridico-tectonic movements.
2. The Green Paper on trading in the allocation of permissible limits of greenhouse gas emissions within the European Union launched a debate across Europe on the suitability and possible functioning of such trading within the European Union. The European Climate Change Programme has considered Community policies and measures through a multi-stakeholder process, including a scheme for greenhouse gas emission allowance trading within the Community on the basis of this Green Paper. In its Conclusions of 8 March 2001, the European Council recognised the particular importance of the European Climate Change Programme and of work based on the Green Paper, and underlined the urgent need for concrete action at a Community level.
In Hungary, Act XV of 2005 aims to diminish the possible risks of changes in the climate due to activities by man. This Act concerns activities that result in the emission of gaseous carbon dioxide, as follows: a) energy activities (coking ovens, mineral oil refineries, and so on); b) the production and processing of ferrous metals (metal ore roasting or sintering installations, installations for the production of pig iron or steel, etc.); c) mineral industry (installations for the production of cement clinker in rotary kilns, installations for the manufacturing of glass, installations for the manufacturing of ceramic products by firing, and in particular roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain, etc.); d) other activities (industrial plants for the production of pulp from timber or other fibrous materials, paper and board with a production capacity exceeding 20 tons per day). The Act also touches upon projects according to the Kyoto (former capital of Japan) Protocol (negotiated in December 1997, opened for signature on 16 March 1998, closed on 15 March 1999, and entered into force on 18 February 2005 following its ratification by Russia) to the United Nations' Framework Convention on Climate Change (UNFCCC) of 1992 (entered into force in 1994).
Hungarian government decree 272/2004 (IX. 29.), based on Section 36 of the Hungarian Code on Environmental Protection, preceded Act XV of 2005. Section 36, Chapter II of Act LIII of 1995 states that protection of the elements of the environment from harmful effects may be regulated exclusively by acts of Parliament, or, in special domains, governmental decrees. The allowance of greenhouse gas emission and related matters are regulated by governmental decree 272/2004.
These two acts of law are in harmony with directives 2003/87/EC and 2004/101/EC of the European Parliament and of the Council.
3. In Hungary, Section 16 of Act XV of 2005 relates to the public information character of the data concerning trading in greenhouse gas emission allowances. It is declared by Section 61 of the Hungarian Constitution that, in the Republic of Hungary, everyone is entitled to receive and divulge knowledge of public information. The Aarhus (town in Denmark) Agreement of the Council of Europe, ratified by the Hungarian Republic, as well as by all the present Member States of the European Union, prescribes a duty of information service, concerning data relating to the environment or nature, on the part of the state administrative organs and private societies making use of environmental or natural values. In the event of a lack of duty on the part of the interrogated state organ or firm, the Agreement offers a legal standing before normal state tribunals to citizens or associations (associations sans but lucratif). Originally, it was declared by Article 17 of directive 2003/87/EC that decisions relating to the allocation of allowances and the reports of greenhouse gas emissions by the competent authority must be made available to the public by that authority subject to the restrictions laid down in directive 2003/4/EC. Respecting Preamble (16) of directive 2004/101/EC, furnishing amendments to directive 2003/87/EC, Article 17 was subsequently amended so as to include information on project activities in which a Member State participates or authorizes private or public entities to participate.
The unit of emission is 1 ton of carbon dioxide, and this is a materialized, commerciable right.
The President of the United States of America made a press release at the G 8 meeting in Scotland in 2005, forwarding a proposal for a complete revision of the Kyoto Protocol, finding it actually unacceptable. George Walker Bush stated: The world's second-largest emitter of greenhouse gases is China. Yet, China was entirely exempted from the requirements of the Kyoto Protocol. China has since ratified the Kyoto Protocol.
- 91/92 -
In contrast with the emission of dangerous materials, the project-based investments are not based on the distribution of emission rights: the measurement of emission reduction is rather based on already realized projects. The number of emission rights is given by the difference between the baseline and the real amount of emission.
The German forestry industry falls into the category of project-based investments, since the smaller firing installations made use of by German forestry do not fulfil the requirement of industrial sectors within the reaches of directive 2003/87/EC.
In accordance with the relevant treaties of accession, the acquis communautaire should be taken into account in the establishment of baselines for the project activities undertaken in countries acceding to the Union (Preamble (11) of directive 2004/101/EC).
6. Besides the European Union greenhouse gas emission allowance market from 2005 and the Kyoto Market from 2008, an Off-Kyoto-Market has been brought about in the last few years. This relates, for example, to the changing of fuel within the activities of an enterprise, or renewable sources of energy.
The possible costs are internal ones (such as those of control and documentation) or external ones (those of validation, authorization procedures and generation); other costs of emission trading may also arise.
7. In respect of Annex V of Hungarian government decree 272/2004 (IX. 29.), the operator's name and address, the entity, a detailed description of the activities, and the designation of greenhouse gases according to the Annex are necessary parts of a permit on emission. The code number of the permit, that of the entity, and the methods and measures taken to follow the emission by the activities must also feature on the permit. Additionally, the operator is obliged to return emission units by 30 April at the latest each year according to the emission in the previous year. The National Administration of Environment and Water issues a permit on the condition that they find the operator able to follow and report on his greenhouse gas emissions.
8. In order to make a decision as to the number of emission units to be distributed within a period of commerce and on the mode of distribution, the Hungarian Government must prepare a National Distribution Project. On the basis of this National Distribution Project, the Government establishes a National Distribution List for the purpose of sharing out the emission units among the operators. In terms of civil law, the above-mentioned distribution is a transmission of the ownership.
The operators may reach a covenant to make use of the emission units under joint auspices (pooling).
Observing Article 28 of the directive 2003/87/EC, Member States may allow operators of installations carrying out one of the activities listed in Annex I to form a pool of installations from the same activity. The operators apply to the competent authority, specifying the installations and the period for which they desire the pool, and supplying evidence that a trustee will be able to fulfil the obligations. The trustee is subject to the penalties applicable for breaches of requirements to surrender sufficient allowances to cover the total emissions from installations in the pool.
It is the duty of the Hungarian Minister of Environmental Protection and Water Economy to furnish an international report on the functioning of the trading in Hungary's emission units.
Conclusions can be drawn from the rules described above. Inherent features are a new means of sanctioning in Hungary, the institution of publishing the identity of the wrong-doer under public law circumstances, a larger scale of application of the fundamental principle of informing the people about what is going on in their world, and in particular the environment, and pooling in the commerce of greenhouse gas emissions units. Political debates appear unavoidable regarding financial profit as opposed to a healthy nature and environment.
A better future and self-restrictions are inseparable notions in modern everyday life.
Protection of the environment and nature suggests much more than earlier supposed. Only a new manner of thinking can convey our society to a future with sustainable development.
1. Act No. X on Product Liability of 1993 and Act
No. XLIII on Waste Economy of 2000 declared an objective kind of liability on the part of the producer-importer and, in the latter case, on the landowner's side, disregarding culpability. These objective liability systems appearing within the reaches of civil environmental law show a renewed tendency of objectivation in civil law, including civil environmental law. This tendency emerged in the 1930's, but was submerged shortly after. Was this for political reasons, or was it from a simple economic-material aspect? I do not know.
Hungary's newly prospected civil code, up to a French example, implies a titular, purely obligational solution in its contract regulations. Professor Lajos
- 92/93 -
Vékás, president of the codification team (civil code), adopted this French method, in this way substituting the German contract law, a mixed system necessitating a proper titulus and a proper modus alike.
To put theory to the test of practice, let us consider an example. In The Netherlands, the Wet van Bodembescherming (Act on Soil Protection) stipulates a precontractual information obligation on behalf of the vendor. All this is in respect of the institution of unjust enrichment. Is it not a purely obligational viewpoint, disregarding the question of a legally correct acquisition, the institution of possession, when speaking of property? The obligation alone generates duties, with a precontractual phase at the beginning of the legal act. The character of acquisitio derivata loses its signification in this purely obligational and hence objectivated legal system, where not even culpa levissima may infiltrate. Correct or not, the question remains. Answers may arise after the adoption and implementation of Hungary's new civil code.
Jurisprudence also has to be supported by legal dogmatics. A properly interpreted new theory can find its place in the framework of the Hungarian legal system.
Under the auspices of contractual liability in civil environmental law, a purely obligational system is in fermentation. It would develop to a faultless objective kind of absolute liability, to a more objective system than that current in England and Wales. To date, that civil environmental law was the only one that could be compared with Hungary's homologous regulations. Though English and Welsh civil environmental liability is a fault-based absolute civil liability, where fault of negligence-type is required as a minimum for liability to be established. This is bound by culpa. In the forthcoming Hungarian version, this culpa seems to be eliminated. Liability is established to the detriment of the landowner or the importer even if neither direct, nor indirect causality can be stated. All this is in the interest of environment and nature protection.
According to Act No. XLIII on Waste Economy of 2000, it is the landowner's duty to provide a guarantee, a financial background, in the event of waste found on the property in his possession at the time of the pollution, although now not in his possession, or in the event of contamination originating from that property. Objectivation has reached its zenith. Nevertheless, a completely objective solution evokes the principle of summum ius = summa iniuria.
Reasonable care, the lack of imprudence or négligence and an erforderliche Sorgfältigkeit do not come into account. Those are excluded from consideration. Liability is based on an obligational, out-of-causality legal relationship between damage and owner, damage and importer. The exacerbation of contemplating the interests of the damaged party in indemnity first appears to be sufficient, and both legally and morally acceptable, mainly from an environmentalist point of view. Later, questions arise - and remain unanswered. Is this not the cutting of the Gordian knot?
The modus missing in this environmentalist context can be found in today's Hungarian contract law. This necessitates a proper, legally correct way for a property to pass into somebody's possession. This is at the basis of legal safeguard. In a French-type, purely obligational system, the person of the real possessor enjoys morally unjust protection, an unequal legal palladium. In a German type of mixed (titulus + modus) contractual regulation, environmentalists hold that environmental points and nature preservation might possibly be pushed back, although I believe that such a regulatory arsenal would create a secure legal background for a just and justifiable dual indemnity - injunction system. We should not disregard the consequences derived from the fact of possession. Normally, at present, we consider the possessor, but, in the future, duties could be inflicted upon either the owner or the importer, etc. At present, not even an adequate legal background, e.g. an act on environmental insurance, is in force in Hungary. Creating a new atmosphere is always concomitant to changes in law and other rules.
Why would the victim of a prejudicial land contamination bother with going onto the premises and searching for the possible author of the harm? It appears to be sufficient to look up the identity of the owner in the land register and request torts and damages from that person, who is possibly actually innocent. Why, in the name of environment protection, should we address our request to someone who certainly has no connection with the damage arising and who is not aware of the harmful activities stemming from his or her land? In contract law, ignoring the factor of a pertinent modus, objectivity can conflict with such principles as that of everyone is innocent unless proved guilty. This praesumptio iuris is far from being a justifiable means of solving a problem. It is close to being a mere fiction, and such a regulation cannot subsist in a modern society. Only the growing economic power of insurance companies could furnish sufficient subsidy. In Switzerland, Pierre Widmer proposes the institution of insurance backing civil liability by way of objectivation (WIDMER, op. cit., p. 9).
A correct application of the law relating to possession within the reaches of civil environmental law could forward objectivation in a both morally and legally acceptable manner. When a contract is signed following the full provision of information concerning the real facts relating to the property, no
- 93/94 -
Considering the statistics, China emits 2.893 million metric tons of carbon dioxide per year (this means 2.3 tons per capita). The USA emits 5.41 million tons (20.1 tons per capita), and the European Union emits 3.171 million tons (8.5 tons per capita). Nor has Australia signed up to the Kyoto Protocol to date. Australia is the second-largest emitter of greenhouse gases per capita. Russia initially also emphasized its negative feelings about the current international regulations in this field, but finally ratified the Protocol on 18 November 2004. A map to be found at http://vitalgraphics.grida.no/kyoto reveals reasons for the positions taken by the mentioned countries. Canada, the USA, Mexico, Australia and Spain are the worst greenhouse gas emitters, whilst Russia, Germany, Poland and Hungary display the most promising features as concerns the difference between the targeted and projected emissions by 2010. The European Union has called on the USA and India to ratify the Protocol. After long discussions between environmentalists and businessmen, Canada ratified the Kyoto Protocol on 17 December 2002, though the state of Alberta, a prolific oil and gas producer, is still against it. To date, some 141 countries have ratified the Kyoto Protocol, which pledges to cut greenhouse gas emissions by 5.2% by 2012. The carbon dioxide emission in the 15 European Union countries that signed the Protocol in 1997 is now 2.9% below the 1990 level. All 25 countries of the European Union, and also Romania and Bulgaria already figure on the Kyoto Protocol Ratification List. The Framework Convention on Climate Change and the Kyoto Protocol are to be considered merely as first steps, and perhaps not sufficient themselves to moderate the increase of the Earth's temperature.
Not only carbon dioxide, but also methane and other gases feature on the list of greenhouse gases in the Annex of the Kyoto Protocol.
The Sixth Community Environment Action Programme established by Decision 1600/2002/ EC of the European Parliament and of the Council identifies climate change as a priority for action and provides for the establishment of a Community-wide emissions trading scheme by 2005. This Programme recognizes that the Community is committed to achieving an 8% reduction in the emission of greenhouse gases by 2008 to 2012 as compared with the 1990 level, and that, in the longer term, the global emission of greenhouse gases will need to be reduced by approximately 70% relative to the 1990 level. The rising temperature may otherwise lead to an elevation of the sea level by around 1 metre (because of ice melting at the poles), the generation of hurricanes, the spreading of the deserts, etc. The Agreement on Climate Protection and the Kyoto Protocol were followed by the Marrakesh Accords of 2001. The Kyoto Protocol may enter into force when at least 55 industrialized countries have signed it, these 55 accounting for at least 55% of the greenhouse gas emission.
The activities enumerated in Annex I of Hungarian Act XV of 2005 (also Annex I of directive 2003/87/EC) can be implemented on condition that the environmental authorities issue a permit. This relates not only to financial punishments, but also to publication of the name of the author of the breach of law in the arsenal of sanctions. This latter sanction is a well-known one in more developed states, while in Hungary it has been a typical sanction in the area of the defence of personal rights (Hungarian Civil Code, Section 84, Paragraph 1, Point C); as well as nowadays in the field of tax law; etc.
4. With regard to Section 19 of Hungarian Act XV of 2005, the operator is obliged to pay a fee of revision on a regular annual basis after the permit has been granted. The environmental authorities must devote this sum to the maintenance of the system of trading in emission allowances. The fee is up to 3 forints per ton of emitted carbon dioxide per year. The so-called Cap relates to the whole of the possible emission measured in terms of carbon dioxide emission. In respect of the international agreements mentioned above, the Cap may be shared in two ways. One is called Grandfathering, while the other is Auctioning. Article 17 of the Kyoto Protocol declares that the greenhouse gas emission allowance may be traded with regard to the principles, methods, regulations and directives rendered by the conference of the parties. Amount Units can be sold or bought. In respect of Article 6 of the Kyoto Protocol, and the above-mentioned European Union directives, a Joint Implementation is feasible between two countries. Within the framework of projects, any of the parties is allowed to lend or borrow Amount Units to or from another party. Naturally, additionality remains a key-word, since it has to be proven that the project in question could not have been accomplished without the cooperation of the parties. The resulting Joint Implementation credit is purchasable on the market, though the obtaining country may itself make use of it. All this may be put to the test of practice only from 2008, though projects developed after 2000 may also be involved.
5. According to Article 12 of the Kyoto Protocol, a Clean Development Mechanism is to be established. Thus, developed countries with a developed industry can acquire Amount Units from investment projects carried out in underdeveloped lands. Certified Emissions Reductions (CER) or Clean Development Mechanism credits will also be commercially available from 2008.
- 94/95 -
unjustifiable harm can arise. Lack of a proper information service is to the detriment of the seller. It may be seen that some parts of the law relating to our new property, even after the act of signing the contract, still relate to the former owner. Such remnants of law establish a linkage between the producer and the purchaser, whether real property or chattels be concerned. These apparently small components of the overall law relating to the subject of the contract come into their own when damage arises that stems from lack of duty on the part of the former owner. Possession thus loses its importance within the framework of not absolute liability. Law is shared between the vendor and the purchaser, the complete tradition of the overall law (rights and duties) never being made reality. Caldwell recklessness, a basic notion in British law, de facto fault-based absolute liability, is being introduced into practice. From this aspect, I see no change in the former system of civil liability. And we return to the original British method, not far from the German type of civil environmental law.
A usurper, whose modus is not righteous of course, may also be held liable for the harm caused by himself. Whether this is an extracontractual liability does not matter, since objectivity may be based upon
(1) a correct contractual relationship (in a post-contractual phase), or
(2) a) extracontractual delictual liability (based on a certain fault that stems from the established fact that harm could have been eliminated with reasonable care), or b) the mere fact that the damage that has occurred is attributed to the owner's activity (real objectivity; absolute faultlessness).
If a usurper caused harm and his or her identity could not be detected, a casus nocet domino situation arose before the adoption of the present strict law. Are legislators allowed to judge an environmental view as being more important than the moral theses involved? Is man allowed to expand the scale of environmental interests and give them a larger scope to the detriment of human morals? Can we place environment and nature protection above common human morals?
2. Foreseeability as a standard notion. Foreseeability cannot be a standard technical term, since this notion implies an unjustifiable degree of rigour. Although acceptable for the protection of the consumers, a healthy environment and nature conservation (including the res ipsa loquitur formula in space law: Obadiah, 4, if you should make your position high like the eagle, or if among the stars there were a placing of your nest, down from there I would bring you), foreseeability is not a proper standard in practical civil law. As mentioned above, from a practical viewpoint, it covers too wide a scope of damage, thereby furnishing a form of civil liability that to date has not been applied in many cases, even when necessary. Jurisprudence reflects an objection on the part of the practitioners, a fortiori the justices.
Foreseeability as a basic standard is not a suitable formula in Hungary's present social circumstances. This formula is designed to serve a European aspect of civil law liability that does not comply with Hungarian reality.
A more fault-based standpoint should be adopted in cases other than consumer and environmental protection. These latter areas have enjoyed a special regard from the 1970s in Europe (Paris Conference of the European Economic Community in 1972). Objectivation is conceivable in contract law, however, to ensure a high level of security and safety in this field. A similar regulation is in force in France today, backed by the jurisprudence.
3. History (in brackets). During the 1940s, in the countries coming under German law (e.g. Austria, Germany, Hungary and the attached lands, except for Poland), a high level of objectivation was developed, rooted in the industrialization in the second half of the 1800s. Although the first Soviet Civil Code also implied a superficially similar regulation, this system, with regard to the exceptions, was in fact subjective. A short interval after the 1940s led to emphasized fault-based liability in civil law, mainly in the Eastern regions of Europe. The present recurrence of the movement of objectivation in civil law, based on reasons apparently similar to those of industrialization in the 19[th] century, however, seems to have been accepted and, after a long period of fermentation, approved by legal practice. Moreover, it may bring about a change in the minds of the people, possibly not only in Europe.
1. Hegel, Georg Wilhelm Friedrich: Grundlinien der Philosophie des Rechts (=Basic lines of the Law Philosophy), Edited by Philipp Reclam jun., Stuttgart (Germany), 1970
2. Hobbes, Thomas: Leviathan, Penguin Books Ltd., England, first published in 1651, reprinted in 1985, Chapter XXVI
7. http://zoldtech.hu/cikkek/uveghazhatas-kioto
8. Juergensmeyer, Julian Conrad: Control of Air Pollution Through the Assertion of Private Rights, Duke Law Journal, Durham, N.C., USA, December, 1967
9. Widmer, Pierre: Le visage actuel de la responsabilité civile en droit suisse (=The present shape of liability in Swiss law), in: Développements récents du droit de la responsabilité civile (=Recent developments in civil liability), Zürich, Edited by Schulthess Polygraphischer Verlag, 1991 ■
Lábjegyzetek:
[1] The Author is research fellow.
Visszaugrás
