An obligation, a right or something in between

"Many powers exist on earth, but none as powerful as man" (Sophocles, Antigone)

The construction of the Buk Bijela hydroelectric plant, the LNG terminal in Bar, and numerous other real and potential environmental problems facing Montenegro, as well as the recent lawsuit filed by Pljevljakina in which it is stated that the state has violated her right to a healthy environment and the certainty that other Pljevlja residents will act also, they remain in the shadow of current, more or less current and irrelevant political arguments, arguments and agreements. The same is happening internationally, so Montenegro is no exception, despite the fact that it is the first ecological country in the world. However, what does the "right" say about it, both internationally and Montenegrin? What are the goals of rights (that is, desires and interests) that we want to (not) achieve by norming in a specific matter?

First of all, a wider introductory picture. Environmental protection, in the full sense of the word, as well as the right to a healthy environment, have not yet been adequately realized, both at the international level (in the universal or regional sense), and at the level of the vast majority of countries, including Montenegro. The reasons for such a state of affairs are numerous, but bad policies and corruption prevail, and in connection with them the so-called conflict of interests, then, economic development, lack of awareness and education, lack of resources and technology, etc. Namely, a healthy (or adequate) environment is a prerequisite for life on Earth, a prerequisite for realizing other human rights and freedoms, but also an intergenerational link and endeavor, because the future of the next generations depends precisely on our attitude towards the environment. In this sense, it is quite clear that "We do not inherit the Earth from our ancestors, but borrow it from our descendants". It is indisputable that environmental protection and the right to a healthy environment, as global issues, depend on the individual and collective efforts of the international community, regions and countries, as well as individuals.

Ecological ideas, awareness and efforts have followed Montenegro for many years. Normatively speaking, everything started in 1991 with the adoption of the so-called "Declarations on the ecological state of Montenegro" by the then Assembly of the Republic of Montenegro, and the determination of Montenegro as an ecological state in the Constitution of 1992. Ecological significance was retained and raised to a higher level of protection in the Constitution of 2007. In the Preamble of the Constitution, among other things, it is stated that state responsible for the preservation of nature, healthy environment, sustainable development..., and that Montenegro, in addition to being civil and democratic, ecological and social justice state, based on the rule of law (Article 1). Article 23 stipulates that everyone has the right to a healthy environment, the right to timely and complete information and decision-making on environmental issues, and the correlative obligation that everyone, especially the state, must protect and improve the environment. Although this right, structurally speaking, should have found its place in the part concerning economic and social rights, the constitution maker placed it in the so-called common provisions on human rights and freedoms. A fortiori, Article 78 establishes the duty of everyone to protect natural and cultural heritage of general interest, and yes the state protects natural and cultural heritage. Also, legal and by-laws concerning the protection and preservation of the environment were adopted. In addition, international norms and standards are an integral part of our legal order (Article 9 of the Constitution). For example, the right from Article 23 paragraph 2 of the Constitution is the result of the implementation of the Aarhus Convention from 1998.

On the other hand, on the international universal level, unlike the regional level (see, in particular, article 24 of the African Charter on Human and Peoples' Rights from 1981, and the Protocol to the American Convention on Human Rights from 1988), there are no legally binding, contractual provisions that would protect the right to a healthy or adequate environment. Only the Pact on Economic, Social and Cultural Rights from 1966 indirectly indicates the protection of this right, i.e. the state must take adequate measures, within the framework of the protection of the right to physical and mental health, to improve all aspects of industrial hygiene and environmental hygiene (Article 12). The lack of contractual provisions was filled by the so-called soft law, which is more oriented towards political rather than legal logic and obligation. Namely, there are numerous instruments of a declarative nature, the most significant of which are: the UN Declaration on the Human Environment from 1972 (the so-called Stockholm Declaration), the Declaration on the Environment and Development (the so-called Rio Declaration) from 1992, as well as the Declaration of Principles on human rights and the environment from 1994. Principle 1 of the Stockholm Declaration emphasizes that man has the basic right to freedom, equality and adequate living conditions, in an environment whose quality enables life in dignity and well-being, and a solemn obligation to protect and improve that environment for current and future generations, while principle 1 of the Rio Declaration states that human beings have a central interest in sustainable development, and yes they have the right to a healthy and productive life, in harmony with nature. It also states that the right to development, often viewed as the antinomy of a healthy environment, must be achieved in such a way as to meet the needs of development and environmental protection of current and future generations to the same extent (principle 3). The Declaration of Principles on Human Rights and the Environment went a step further and proclaimed that every person has the right to a safe, healthy and ecologically preserved environment, and yes this right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible. The attitude of the International Court of Justice is also indicative, which in its advisory opinion concerning the legality of the use of nuclear weapons (1996) pointed out that environment is not an abstract concept, but living space, quality of life and the health of human beings, including future generations.

Elem, the Montenegrin normative fabric constitutes the obligation of the state, but also of legal and natural persons on its territory, to protect and preserve nature from all forms of destructive action (environmental protection) in all activities, on the one hand, and on the other hand, the creation of the so-called ecological awareness and culture whose basic meaning is unity and interdependence (ecology), on the other hand. Ecological culture should be viewed through "legal culture", i.e. through the culture of protection of human rights and freedoms, especially if we bear in mind the right to life, the right to a healthy environment (see Article 23 of our Constitution, i.e. Article 45 of the Spanish Constitution, as a better legal solution), or the right to health (see Article 25 of the Universal Declaration). It is a rhetorical question of the existence of a legal and thus an ecological culture in Montenegro, especially if it is understood as the unity of legal consciousness and legal practice, that is, ecological consciousness and ecological practice.

Without intending to go into more detailed legal considerations - from constitutional attributes to subjective rights - it is evident that the issue of environmental protection, as well as ecology, must be a determinant of all activities on the territory of Montenegro. In addition to the "severe" ecological lack of culture of citizens, there remains only the obligation of the State (read entity "completely independent from us - citizens") to preserve the environment in its limited and, above all, exhausted capacities. The words of FD Roosevelt are indicative that a nation that destroys its nature, its country, destroys itself. Due to the inevitability of the absolute law that a person can only change himself and not others, the State's attempt to be better than its constituents remains, assuming that this is possible, at least theoretically. The greatest threat to Montenegro is precisely carelessness, expectations and hopes that someone else will save it and preserve it for generations to come. It is quite clear that one cannot expect perfection, that is, faultless implementation of law in practice, but the dominance of the so-called nudum iusa (bare law) in most general and individual aspects in Montenegrin society. The relationship that citizens have towards the Constitution and the law, i.e. the legal order, has reached a tragic level. Namely, laws are not an end in themselves, as Plato states in his work "Laws", but their end is the greatest good - and is there a greater (general) good than the environment.

In the end, the right to a healthy environment, according to the current situation in Montenegro, is characterized by declaratory nature, that is, it is effectively unattainable, so it is necessary to create an environment and make efforts towards its full effectiveness. However, as international jurisprudence shows, it can and must be protected through the right to life, the right to private and family life and home, and the right to peaceful enjoyment of property.

The author is a doctoral student in legal sciences and a member of the CIVIS at the SO Bar