“Birds do not spend their life asking the meaning of the wind. They simply learn how to fly through it.“The purpose of life is not to control everything. It is to experience life fully with awareness, compassion, gratitude and presence.“To love. To learn. To awaken. And to leave this world a little kinder than when you found it.”– A wise Buddhist monkTHE principle of non-regression prohibits any recession of environmental law or existing levels of environmental protection and comprises protective norms in the category of non-revocable and intangible legal rules in the common interest of humanity. Simply stated, states are prohibited from weakening their domestic levels of environmental protection.As a new principle of environmental law, non-regression is backed by legal arguments in addition to those already recognized since the 1992 Rio de Janeiro World Conference on Environment and Development (prevention, precaution, polluter-pays and public participation principles).The legal arguments include: (i) Any legal rule must be modifiable at any time, for it would be morally unthinkable that a generation of people be possessed of the right or the power of binding and controlling the future. Repealing rules protecting the environment would result in imposing a more degraded environment on the coming generations; (ii) Environmental law, now a human right, benefits from the constant progress applied to social rights. Specifically, the UN Commission on Economic, Social and Cultural Rights condemns “any deliberately retrogressive measures.” The idea that once a human right is recognized, it cannot be restrained or repealed, is in all major instruments on human rights (1948 International Declaration of Human Rights); (iii) International conventions all aim at improving the environment. For one, in the 1992 Rio Declaration on Environment and Development, signatories undertake to conserve, protect, and restore the health and integrity of the Earth’s ecosystem. A number of conventions likewise forbids reduction of the level of protection. One example is the 1994 North American Agreement on Environmental Cooperation; (IV) Brazil, Portugal and Germany are among countries with constitutional provisions on human right to the environment. The 2008 constitution of Ecuador recognizes non-regression in the field of the environment while the 2008 constitution of Bhutan declares that 70 percent of the forests are forests forever. Furthermore, national environmental laws that proclaim as imperative reducing damage to the environment can conversely be interpreted as prohibiting any retrogressive measure.The principle of non-regression, by the way, was first established in the United States by a referendum in California on Nov. 2, 2010, when a majority of voters refused to suspend a law on climate change and reduction of greenhouse gas emissions as requested by oil companies.Be that as it may, the principle of non-regression allows for exceptions as long as they do not contravene fundamental environmental policy objectives. For example, under Cites (Convention on International Trade in Endangered Species of Wild Flora and Fauna), species that are no longer endangered could be removed from the list without a regression in the level of protection. Likewise, the ban on a particular pollutant could be lifted when it is demonstrated that it no longer poses a health hazard.To conclude, non-regression does not prohibit repealing or amending existing texts. With the scientific progress that will result from the implementation of the precautionary principle, either it will be strengthened to deal with new threats to health and nature, or it will be eased if a source of pollution that requires protection is demonstrated to be harmless. The main point is that the new rule continues to contribute to environmental and health protection, and does not worsen pollution or loss of biodiversity which is vital to food security for the survival of humanity.
