Global Environmental Law at a Crossroads

Ecosystem Services and Sustainable Development: Creating an Integrated Governance Approach: Critical Reflections on the New European Strategy on Biodiversity

Ceremonial Mootcourt Room

“Biodiversity is also our natural capital, delivering ecosystem services that underpin our economy.” According to the European Strategy on Biodiversity, EU commits to halt the loss of biodiversity and the degradation of ecosystem service by 2020 in the light of the transition towards a resource efficient and green and sustainable economy. As defined in Directive 2004/35/EC on environmental liability, the concept of ecosystem service (« functions provided by a natural resource for another natural resource or for the public») enjoys a broad conception that differs from the definition used by the Millenium ecosystem assessment report (« the benefits that people obstain from ecosystems » 2005). More recently, Directive 2008/56/EC for the protection of the marine environment includes the notion of marine ecological services but without definition. In the current state of law, the concept of ecosystem services is not yet stabilised in european law and gives rise to intensive discussions among scientific experts.

However this legal context and the various controversies (scientific, ethical, legal (…)) about ecosystem services, the EU decides to promote economic valuation of the biodiversity and its multiple services. Largely financed by the european Commission, the study of the economics of ecosystems and biodiversity (TEEB 2008-2010) delivers guidelines concerning the complex analysis of the economic value of « natural assets » that are useful to society (jobs and business opportunities, innovation and ecological engineering) and human well being. In its communication « Our life insurance, our natural capital », the european Commission underlines, for typical example, the economic value of insect pollination in the EU (15 billion per year) and considers that the continuing decline of pollinators « could have serious consequences for europe’s farmers and agri-business sector ». Therefore, if it seems to be a political consensus on protecting and enhancing the ecosystem services, it is not the case for the choice of the normative instruments, the rules and procedures of stakeholder participation and the equitable distribution of costs and benefits, especialy at the different levels of decision-making (local, regional, international).

It is therefore essential to consider key issues : how to prevent a strictly economic approach of ecosystem services that could be presented as THE solution to improve the efficiency and effectiveness of environmental legal protection? How to prevent unfair approach for the protection and the valorisation of ecosystem services at the different levels of elaboration et implementation of european policies ? How to prevent riks of regression of environmental european law which may be produced directly or indirectly by the concept of ecosystem service? All thoses questions lead us to the questions of Who decide and How promoting new forms of democratic governance to ensure new models of conservation and restoration of ecosystems with conciliate the protection of intrinsic value and others values of biodiversity and sustainable developpement? The European Commission stresses, in its latest communication (COM (2011) 244) that the european strategy “requires the full engagement and commitment of wide variety of stakeholders”, especially concerning the participation of firms, civil society, european regions and key partners of EU at international and regional level (Partenership for biodiversity).

This paper will examine the implications of the concept of ecosystem services in terms of european model of environnemental governance (division of competences between EU and the members states, the place of public-private partnership, the civil society involment). It will contribute to analyse how to promote an integrated governance approach and which kind of new procedures and new regulatory authorities are needed to prevent the risks just mentionned before and ensure a high environmental protection. The paper will focus the examen of the contribution of EU to ensure the protection of different values of biodiversity through ecosystem services and consequently the articulation of instruments (economics, voluntary approach, command and control) according to the principles of environmental european law and the right to acces to information, public participation in decision making and access to justice. The paper will focus on concrete examples at european level and in the context of european external relations in order to compare the close and complex interweaving of different levels of environmental governance and the transformations of regulation.