Brazilian Declaration of Judges on Water Justice of March 2018 as a source of soft environmental law

Ditsevich Yaroslava Borisovna PhD in Law Leading Researcher of the Department of Theory and History of State and Law, Irkutsk Law Insitute (branch) of the University of Prosecutor's Office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1 yaroslavadi@mail.ru Other publications by this author

Kolobov Roman Yurievich PhD in Law Associate Professor of the Department of International Law and Comparative Jurisprudence of the Irkutsk State University Law Institute; Associate Professor of the Department of Civil Law of the East Siberian Branch of the Russian State University of Justice; Head of the Fundamental Research Department of the Research Institute of Legal Protection of Lake Baikal of Irkutsk State University 664074, Russia, Irkutsk region, Irkutsk, Ivan Franko str., 23a roman.kolobov@gmail.com Other publications by this author

The study and analysis of the results of the work of non-governmental international organizations in the field of water resources protection, which contribute, among other things, to the consolidation of public and government efforts in the environmental field, gives reason to note the prospects of applying the international experience under consideration in the formation of a set of measures to preserve the valuable Baikal ecosystem. The long–term research conducted by the authors of this article is aimed at studying in order to develop proposals for the modernization of Baikal legislation, the core of which is a specialized regulatory legal act of a legislative nature - the federal law "On the protection of Lake Baikal" ^[1].

Justice is one of the central elements of a modern democratic society. Since the requirements contained in court rulings are mandatory in the vast majority of countries of the world and are subject to enforcement by means provided for by national legislation, judicial enforcement measures are quite reasonably considered one of the most effective in countering violations of environmental legislation.

The judicial corps in most countries of the world, as a rule, is a team of highly educated specialists in the field of jurisprudence (and in countries where specialized environmental judicial bodies have been established and operate – often with special environmental education), the level of professionalism of which allows not only to form judicial practice in the environmental field during the consideration of relevant criminal, civil, administrative but also to improve this activity, including through the development and adoption by the supreme court of judicial decisions or clarifying the procedure for the application of regulatory legal acts of documents. For example, in Russia, these include a number of currently valid thematic resolutions of the Plenum and reviews of judicial practice of the Supreme Court of the Russian Federation ^{[2, 3]}.

The World Water Council is an international non–governmental organization whose activities for many years have contributed to raising awareness of the world community in the field of global problems of water conservation, including by holding a significant international event designed to facilitate the organization of cooperation of representatives of most countries of the world on this topic - the World Water Forum.

This largest meeting is held every three years in order to: increase the importance of the role of water in public planetary thinking and the political world agenda; organize discussions to develop proposals to solve the problems of water conservation in the XXI century; form certain political commitments of the participating countries of the forum to improve the situation with water supply within their territories.

It should be noted with satisfaction that special attention is paid to the problems of protection and sustainable use of water resources at the international level, including the fact that issues of conservation and rational use of water resources are in the focus of attention of prosecutors and judicial authorities in most developed countries of the world.

In particular, one of the documents that attract attention in the context under consideration is the Brazilian Declaration of Judges on Water Resources Justice in 2018 (hereinafter referred to as the Brazilian Declaration of Judges; Declaration). The 8th World Water Forum (which became the largest event in history, organized for the first time in the southern hemisphere), in which this declaration was signed, was attended for the first time by representatives of the judicial system - 83 judges (including the highest judicial authorities), as well as prosecutors and experts from 57 countries ^[4]. At the same time, for the first time in history, the forum hosted an international training trial on issues related to water protection and water use, which was attended by members of the Supreme Courts of six countries.

The accompanying documentation to the Declaration contains a disclaimer (thus emphasizing that this document is not an expression of the position of States, but only the opinion and aspiration of the signatories of the declaration, reflecting the independence of its norms from the official positions of States represented at the forum), but this does not reduce the value of the provisions contained in this international document of provisions. Let's consider some of them, taking into account the specifics of the subject of this study – ways to strengthen the regime of legal protection of Lake Baikal.

The core of the Brazilian Declaration of Judges consists of ten principles. It seems that all of them reflect, to one degree or another, the environmental priority in water use activities. The issue of the balance of environmental priorities and economic development goals of settlements located in the Central Ecological Zone of the Baikal Natural Territory is one of the most socially tense points today. The second principle of the declaration "Justice in the field of water resources, land use and environmental functions of property" and the sixth "interpretation of doubts in favor of water" seem significant and interrelated. The principle of justice in the field of water resources, land use and environmental functions of property establishes the obligation of any person who has the right or desire to use water resources or land to maintain the ecological functions and integrity of water resources and related ecosystems, and also creates additional prerequisites for the realization of the right to appeal to judicial authorities for the protection of rights related to the use of water resources.

The sixth principle of the Brazilian Declaration of Judges, literally translated as "interpretation of doubts in favor of water", indicates the need to apply the principle in dubio pro natura ("in doubt - in favor of nature" (translated from Latin) in the presence of uncertainty in resolving disputes concerning water resources and the environment.

According to it, laws should be interpreted more in favor of protecting and conserving water resources and related ecosystems. The use and declaration of these two principles makes it possible to clearly define priorities and choices in favor of environmental activities, whatever the amount of short-term economic benefits.

Of course, the declaration of the judges could not but emphasize the role and importance of regulatory and law enforcement aspects in the protection of water resources. The eighth principle establishes the need for existing water laws and their effective compliance. There is a lot of information about the imperfections of laws and by-laws establishing the regime of legal protection of the Baikal ecosystem in the scientific literature and journalism, at the same time, it is impossible not to reflect the intensification of the adoption of certain decisions by the authorities and the implementation of measures aimed at improving the situation in the field of enforcement of environmental laws in the Baikal natural territory noted in the last five years (in particular in its Central Ecological Zone). An important role in this was played, among other things, by the creation in 2017 of a specialized authority - the Baikal Interregional Environmental Prosecutor's Office. The need to form such a structure in the main Russian supervisory authority, first of all, was dictated by the significance of purposeful work on the preservation of Lake Baikal and the Baikal natural territory, the presence of serious problems in various spheres of public relations developing in the field of preserving the ecosystem of the Great Lake (including environmental, social, economic and other spheres of relations) and at the same time significant powers in environmental protection and other spheres, which are vested with the bodies of the Russian prosecutor's office at the present stage of the development of Russian statehood ^[5].

The ninth principle of the Judges' Declaration may be of particular importance for the Baikal Natural Territory, reflecting the need to take into account the requirements of the ecosystem approach in the administration of justice in the field of water protection and related issues and the existence of an important and inextricable link between the aquatic environment and land use and the environment as a whole.  The state of Lake Baikal is predetermined by many elements of its ecosystem, including the state of soils, the delta of the Selenga River, the system of forests surrounding the water area and many other elements. Taking into account the role of these factors is critically necessary for solving environmental problems in the Baikal natural territory ^[6].

Finally, it is impossible not to note the judicial call for the implementation of legal education, expressed in the need to include water law in the curricula in the field of law. Taking into account these provisions, it seems appropriate to introduce the academic discipline "Baikal Law", studied by choice (i.e. on an optional basis) in law schools of regions located on the Baikal natural territory. Within the framework of this course, the legal regimes for the protection of Lake Baikal and the problems of their application in practice are to be studied on a systematic basis. In addition, when forming training programs within the framework of professional development of judicial and prosecutorial staff on a nationwide scale, it seems appropriate to include in the existing, as well as in newly developed educational programs, disciplines providing for the study of the main aspects of law enforcement practice in the field of environmental protection (including, taking into account the natural specifics of the region where these employees carry out their activities). It is also important to regularly analyze the practice of consideration by courts of civil and administrative cases related to the environmental sphere ^[7], as well as the practice of identifying, suppressing and bringing to justice persons who have committed crimes, responsibility for which is provided for in Articles 246-262 of the Criminal Code of Russia ^[8].

Representatives of the prosecutor's offices from 9 countries also signed a special document within the framework of the World Water Forum - the Declaration of the Prosecutor's Office on the right to water. It is worth noting that during the events regularly held in recent years with the participation of prosecutors from different countries, issues of nature protection and participation in this activity of the prosecutor's office, as a rule, receive due coverage.

For example, in July 2021, within the framework of the conference of heads of Prosecutor's offices of European states on the topic "The role of the Prosecutor's Office in protecting individual rights and public interest in the light of the requirements of the European Convention on Human Rights", held by the Prosecutor General's Office of the Russian Federation in cooperation with the Council of Europe and the International Association of Prosecutors ^[9], due attention was paid to the discussion of environmental protection issues. prosecutorial activity ^[10]. 

It is also very informative to study the experience of the International Association for Water Resources. As one of the founders of this organization H. Preul points out, the organization was established in the USA in 1971 ^{[11, p. 86]}. The first World Water Congress organized by the Association was held in Chicago in 1973 and, according to the organizers, was extremely successful (more than 175 technical publications were presented and three volumes of works were published) ^{[11, p. 87]}.

In 2017, such a congress, the 16th in a row, was held in Cancun (Mexico), it was attended by more than 1,100 participants from more than 68 countries.  The study of the documents adopted at the World Water Congress ^[12] shows that there is a certain correlation with the results of the World Water Forum.

The established ideological paradigm of sustainable development was fully supported by the Cancun Declaration of the 16th World Water Congress (hereinafter referred to as the Congress), which stated the need for rapid changes to achieve sustainable development goals.  The activity of the Association has a pronounced expert character, therefore, the aspect of scientific research and knowledge exchange has received a separate consolidation in the analyzed declaration. The Congress participants stated the need to make efforts to carry out interdisciplinary research and knowledge exchange. Moreover, the term "knowledge" in this case must be understood in a broad sense (including branches of natural and humanitarian knowledge, new and traditional knowledge).

In the context of this article, the call for building a management policy based on scientific knowledge found in foreign scientific literature deserves attention. "Scientists should respond to the requests of civil society and the requests of policy makers to carry out applied research, and policy makers should recognize science as the basis for evidence-based policy and public debate" ^{[11, p. 86]}.

The issues of scientific validity of management decisions in the field of Lake Baikal protection are one of the urgent problems in the field of environmental relations under consideration. One of the proposals for its solution is the formation of an Expert Council on Lake Baikal based on the composition of researchers of the Siberian Branch of the Russian Academy of Sciences, with the inclusion of other experts from among the representatives of the scientific community. The powers of this structure may include such functions as the preparation of conclusions on the scientific validity of draft documents in the field of Lake Baikal protection, which have a significant impact on environmental activities in the Baikal natural territory (including correcting the list of prohibited types of economic and other activities in the Baikal natural territory; determining the maximum water levels in Lake Baikal, and also establishing the extent of water protection and fish protection zones, etc., taking into account the multiplicity of disputes arising in the scientific community and in law enforcement activities within the framework of appeals to these environmental institutions) ^[13].

It seems appropriate to fix in legal acts the requirements that the listed legal documents are subject to approval by the authorized authorities only if there is a positive conclusion of the Expert Commission on the Protection of Lake Baikal or in case of failure to submit such within 60 calendar days from the date of its referral to this advisory body.

 The study of international practice of adopting declarative documents, which are, in a way, elements of a social contract between representatives of the public, business and the state in the field of nature protection, allows us to make a proposal to prepare such a document regarding the organization of protection and rational use of natural resources within the ecosystem of Lake Baikal, which, of course, will contribute to solving numerous problems of preservation of Lake Baikal, reflected, among other things, in the decisions of the World Heritage Committee ^[14].

In 2001, when developing a Strategy for the Conservation of Biodiversity of the Lake Baikal Ecosystem (hereinafter referred to as the Strategy), the idea of the need to prepare and sign a Public Agreement as an important mechanism for implementing regulations on the conservation of biodiversity of the Lake Baikal ecosystem, aimed at developing interaction between all the numerous participants in the conservation of biodiversity of Lake Baikal, consistent with international experience in organizing activities for the conservation of biodiversity, it has already been consolidated at the government level ^[15]. At the same time, two decades later, it has to be stated that the vast majority of the measures from the list of environmental measures to be implemented in the above document have not been further implemented for a number of reasons.

Thus, the consideration of the main results of the activities of non-governmental international organizations on the protection and sustainable use of water resources allows us to come to the conclusion that it is advisable to use the specified international environmental experience in the formation of a system of measures aimed at solving the problems of protecting the ecosystem of Lake Baikal. At the same time, further study and analysis of the content of legal documents formed as a result of the activities of the above-mentioned subjects of international environmental legal relations, as it seems, can generally contribute to improving the quality of legal regulation of environmental relations in specific states.